DECISION

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

Ms Preeti Devi
v
Doutta Galla Aged Services Limited
(U2018/2095)

Application for an unfair dismissal remedy; whether there was a termination of employment at the employer’s initiative; suspension without pay; whether there was a repudiation; whether there has been acceptance of repudiation; whether contract frustrated; whether employment continuing; dismissal unfair.

Introduction

[1] On 27 February 2017, Ms Preeti Devi applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. Ms Devi commenced employment with Doutta Galla Aged Services Limited (Respondent) on 28 April 2015 on a casual basis. On and from 24 July 2015 Ms Devi was engaged on a permanent part-time basis. The Respondent is an aged care provider and Ms Devi commenced her employment working as a Food Services Assistant at the Respondent’s Footscray facility. At the beginning of 2017, Ms Devi began working as Personal Care Attendant (PCA) and then at some stage in early 2017, Ms Devi began working as a “Med Assist” PCA. 1 Ms Devi alleges that the Respondent by its conduct repudiated her contract of employment which she accepted on 7 February 2018.

[2] The Respondent says that the application should be dismissed on four jurisdictional grounds. The Respondent’s primary position is that Ms Devi has not been dismissed. 2 Alternatively, the Respondent contends that should the Commission determine that Ms Devi’s employment was terminated, that it was not at the initiative of the employer for the purposes of s.386(1)(a) of the Act.3 Thirdly, the Respondent contends that if Ms Devi’s employment was terminated at the employer’s initiative, Ms Devi’s application has been lodged outside of the prescribed period in s.394(2) of the Act and that there are no exceptional circumstances which exist warranting an extension of time.4

[3] I have concluded that the Respondent repudiated Ms Devi’s employment contract by suspending Ms Devi without pay and that on 7 February 2018 Ms Devi accepted the repudiation and brought the contract and the employment relationship to an end. Consequently the termination of employment was at the employer’s initiative. Ms Devi is a person protected from unfair dismissal. The date the dismissal took effect was 7 February 2018 and as such the application for an unfair dismissal remedy was made within the 21 day prescribed timeframe in s.394(2) of the Act. I have also concluded that the Applicant’s dismissal was unfair. These are my reasons for that decision.

Background and factual context

[4] The background set out below should be taken as my findings of fact. Some of the matters below are uncontroversial. Where it is necessary to resolve conflicting evidence in the background below I will expressly do so. Ms Devi is in Australia on a Student (Subclass 500) Visa (Student Visa) and is studying a Bachelor of Nursing at the Australian Catholic University. 5 As outlined earlier, Ms Devi became a permanent part-time employee of the Respondent on 24 July 2015 and she was engaged under the terms of a written employment contract entitled “Visa Restricted-Student Contract of Employment- Part Time Employment” (Employment Contract) which she signed on 4 August 2015.6 The Student Visa that applies to Ms Devi is subject to a number of conditions which, inter alia, limit the number of hours that she can work in a fortnight. Ms Devi’s Student Visa was subject to condition number 8105.7 Condition number 8105 of the Student Visa provides that a student cannot work more than 40 hours per fortnight when a course is in that which is described by the Department of Home Affairs (DHA) as, “session”.8 In addition to the Student Visa conditions, the Employment Contract provides the following in relation to hours of work:

“6. Hours of Work

6 .1. The Employee shall not work in excess of 20 hours per week on a Part Time basis.

6 .2. The Employee will not accept and / or request more than 20 hours per week.

6.3. The Employee will immediately inform the Employer if they have been asked to work in excess of 20 hours per week.

…” 9

[5] On 2 August 2017, Ms Sarah Hourigan (Human Resources Advisor), wrote to Ms Devi alleging that she had, on six occasions, worked in excess of the 40 hour per fortnight condition of her Student Visa (Initial Letter). 10 The Initial Letter said that an audit of the Respondent’s “Emplive” system discovered that Ms Devi had worked in excess of the 40 hour per fortnight restriction and set out that the alleged breaches had taken place on the following occasions:11

[6] The Initial Letter also provided that Ms Devi would not be permitted to attend for work pending the outcome of an investigation into the alleged breach. 12 The letter also invited Ms Devi to attend a meeting with Ms Hourigan to allow her an opportunity to respond to the allegations and advised her that she should bring any evidence to refute the allegations, that she could bring one support person with her and that in the event she fails to respond her employment may be terminated.13

[7] On or around 10 August 2017, Ms Devi attended the aforementioned meeting and told Ms Hourigan that she was on semester breaks at the time of the alleged breaches and she therefore, had not contravened the condition of her Student Visa. Upon further investigation into the alleged breaches, the Respondent determined that Ms Devi’s course was not in session at the time of alleged breaches and that she had therefore not worked in excess of the 40 hour per fortnight limitation. The Respondent’s evidence is that during the course of the meeting, Ms Hourigan discussed with Ms Devi her Student Visa obligations and told her that it was critical that she did not work in excess of the 40 hour per fortnight condition. 14 Ms Devi’s evidence about the discussion with Ms Hourigan is inconsistent. During cross-examination, Ms Devi said that she “does not remember” the discussion with Ms Hourigan15 and then said that Ms Hourigan never discussed her Visa obligations with her at the meeting.16 In any event it is not suggested that Ms Devi was unaware of the condition attaching to the Student Visa.

[8] By letter dated 24 August 2017, the Respondent advised Ms Devi that the investigation would not be pursued any further because the Respondent had determined that she had not breached the Student Visa condition because her course was not in session at the time of the alleged breaches and that she would be permitted to return to work. 17

[9] On 2 November 2017, Ms Devi was rostered to complete a shift at the Footscray facility by 1.00pm. 18 Ms Devi appears not to have clocked off at 1.00pm and the Respondent says that she worked 1.91 hours in excess of the 40 hour limitation.19 On 21 November 2017, the Respondent put the allegation to Ms Devi in a letter (Second Letter), outlining the purported breach, and invited Ms Devi to attend a meeting with Ms Hourigan on 27 November 2017 at which she would be required to show cause why her employment should not be terminated.20

[10] Ms Devi worked on 26 November 2017 and this was the last rostered shift she was offered by the Respondent. 21Ms Devi has in effect been stood down or suspended without pay since 26 November 2017.

[11] It is relevant here to observe that Ms Devi continued to work during the period of 13 November to 26 November 2017 specifically on 18, 19 and 26 November. 22 Although the Respondent, as will become evident, subsequently alleged that work in contravention of a Visa condition rendered Ms Devi an illegal worker and thus invalidated her right to work, the Respondent did not take any action on or after issuing 21 November 2017 show cause letter to prevent Ms Devi from working on 26 November 2017.

[12] On 29 November 2017, Ms Devi met with Ms Hourigan. Ms Devi was asked why she had clocked off late on 2 November 2017. She said that to the best of her recollection, she had inadvertently clocked off after her rostered finish time because she may have been waiting with a resident for whom an ambulance had been called or chatting with residents or staff, but that she did not work beyond her rostered hours. 23Ms Devi was not shown any documents corroborating the alleged breach such as the iCare notes or ambulance transfer notes of 2 November 2017.24 That Ms Devi provided this explanation or an explanation to that effect is not in dispute. Ms Robinson’s evidence was that Ms Devi had told Ms Hourigan at the meeting that she could not remember if the ambulance was on that day or another day.25Ms Hourigan’s evidence is that during the meeting she reminded Ms Devi of their discussion in August 2017 and that she would consider Ms Devi’s responses and review the iCare notes in relation to the explanations that Ms Devi had provided in the meeting.26This is not seriously contested.

[13] Ms Hourigan’s evidence is that after her meeting with Ms Devi, she spoke to Ms Sharon Robinson (General Manager, Organisational Capability) about the meeting and told her that she would check the iCare notes. 27 Ms Robinson said she would review the iCare notes to confirm whether any ambulances had been called on 2 November 2017.28 iCare is a software platform used by the Respondent to ensure that residents have a single electronic record of all matters relating to their health and wellbeing.29 The platform documents a range of data concerning such things as medication, behavioural issues, hygiene, concerns, reports, assessments and care plans. 30 The Respondent’s staff are trained in and are required to use iCare and staff can access the platform by using a unique user ID.31
[14] Upon reviewing the iCare notes for 2 November 2017, neither Ms Hourigan nor Ms Robinson were able to identify that an ambulance had been called around the time of Ms Devi’s alleged breach. 32 Ms Hourigan also identified a number of notes entered by Ms Devi into the iCare system at varying times between 1.00pm and 2.37pm on 2 November 2017, which according to Ms Hourigan and Ms Robinson, show that Ms Devi had worked in excess of her rostered finish time.33

[15] According to the iCare entries on 2 November 2017, a “Resident Transfer Form” was entered into the system by Ms Eisalyn Tolaresa at 12:28pm and another entry was entered by Ms Leena Binil at 7:29pm. 34 “Progress notes” supplement the iCare entries. According to the progress notes on 2 November 2017, Dr Christopher Maclay made an entry at 11:57am requesting the resident be transferred to a hospital for some tests to be undertaken.35 It appears that at 12.28pm, Ms Tolaresa completed the Resident Transfer Form36 in accordance with Dr Maclay’s instructions. At 2.35pm, Ms Tolaresa made a further entry confirming that the doctor’s instructions had been carried out and that she spent 20 minutes with the resident prior to the ambulance taking the resident to the hospital.37 The progress notes and iCare entries do not disclose the precise time that the ambulance arrived to transfer the resident or when within the span of the time recorded, Ms Tolaresa spent the 20 minutes with the resident. Ms Robinson’s understanding from the documents is that the ambulance transfer took place at some stage between 11:57am and 12:58pm when the transfer form was completed.38But she has no actual knowledge about the precise time the transfer took place.

[16] None of this is particularly probative to establish precisely what it is that Ms Devi was doing at the workplace on 2 November 2017. It is to be remembered that Ms Devi works at the Footscray facility of the Respondent’s aged care facility services. 39 The Resident Transfer Form indicates that the patient was transferred by ambulance from another of the Respondent’s facilities, the Yarraville village Doutta Galla facility at 36 Somerville Road.40 It seems that Ms Devi could not have been waiting with the patient the subject of the transfer. Nor does the document disprove Ms Devi’s explanation which was that she “may” have been waiting with a resident for an ambulance.

[17] The iCare entries from 2 November 2017 record that Ms Devi made a number of records after her rostered finish time of 1.00pm. An extract of those notes is as follows:

“•  Preeti Devi (Care Worker) wrote on 02 Nov 17, 14:06

•  Observation has been added to Neurological Observation Chart by Preeti Devi (Care Worker) on 02-Nov-2017 at 14:06 hrs

•  Preeti Devi (Care Worker) wrote on 02 Nov 17, 13:39

•  Observation has been added to Vital Signs Chart by Preeti Devi (Care Worker) on 02-Nov-2017 at 13:39hrs

•  Preeti Devi (Care Worker) wrote on 02 Nov 17, 14:08

•  Observation has been added to Neurological Observation Chart by Preeti Devi (Care Worker) on 02-Nov-2017 at 14:08 hrs

•  Preeti Devi (Care Worker) wrote on 02 Nov 17, 14:09

•  Observation has been added to Neurological Observation Chart by Preeti Devi (Care Worker) on 02-Nov-2017 at 14:09 hrs

•  Preeti Devi (Care Worker) wrote on 02 Nov 17, 14:35

•  Observation has been added to Neurological Observation Chart by Preeti Devi (Care Worker) on 02-Nov-2017 at 14:35 hrs” 41

[18] Ms Robinson’s evidence is that the entries establish that Ms Devi worked at least 1 hour and 37 minutes past her rostered shift time and that the additional work was not requested nor authorised by the Respondent. 42 Ms Robinson says that if a person is entering notes into iCare, this means that work duties are being undertaken.43 Ms Devi denies that she made any neurological observations at the times listed in the iCare entries but agreed she made the earlier notes.44 It seems plain enough that Ms Devi performed work after her rostered shifts to complete at least some iCare notes. I accept the evidence given by Ms Devi which was to the effect that it was her responsibility to make progress or iCare notes, that she understood that such notes had to be entered as soon as possible after the event and at least within 24 hours of the event, that sometimes she would make the notes at the end of her rostered shift and sometimes she would attend the facility when not rostered to make a quick note that she had omitted to make during the course of her shift. Mr Sunjeet Sharma, a former employee of the Respondent who had been employed as the facility manager at the Respondent’s Footscray facility, gave evidence that corroborated Ms Devi’s account which was to the effect that the Respondent had told staff that if they have missed out on entering in documentation, they need to write down the notes within 24 hours.45

[19] During cross examination Ms Devi denied that if she was busy she could ask the RN to enter her notes for her 46 or that she could “tell the next shift so that they could enter the notes for her.”47She denied that the RN or EEN call you and get instructions over the phone,48 or that she could enter the notes on her next shift.49

[20] I accept Ms Devi’s evidence referred to above because it is consistent with the evidence that she gave in chief but more importantly it has a palpable ring of truth about it. iCare notes and progress notes are an important patient or resident record in recording the care given to a resident or patient. It makes sense that the person rendering care or undertaking a particular care giver activity or making a particular observation about a patient or resident would record those matters. It would be poor care management (as well as record keeping management) to allow a staff member to communicate to another staff member for the purposes of having that other staff member record notes about matters concerning a patient or resident in respect of which that staff member had no involvement.

[21] In the end all that this evidence amounts to is that in completing some iCare notes outside of her normal rostered shift, Ms Devi inadvertently worked. She did so without the Respondent’s knowledge. Otherwise I accept Ms Devi’s explanation that on this day she simply clocked off late through inadvertence. This is hardly the stuff of a serious and deliberate breach of a Visa condition or the contract of employment. It is respectfully, a trifling matter.

[22] On 5 December 2017, Ms Devi attended the Respondent’s head office in Footscray and asked to see Ms Hourigan. 50 Ms Devi was told that that Ms Hourigan was unavailable and she instead met with Ms Amy Foster (Human Resources Advisor, IT Systems & Support) and Mr Scott Myles (Human Resources Business Partner) to discuss why she had not been offered any shifts since 26 November 2017.51 Ms Foster’s evidence is that during the meeting, Ms Devi asked why she had not been rostered to work to which Ms Foster advised that she would discuss the matter with Ms Hourigan and report back to her.52 Ms Foster’s evidence is that she discussed the matter with Ms Hourigan who told her that she was finalising a letter to be sent to Ms Devi.53 Ms Foster then telephoned Ms Devi and told her that she could expect a letter from Ms Hourigan which would explain what she was required to do in order to be able to return to work.54 This evidence is not in dispute.55

[23] On 7 December 2017, Ms Hourigan wrote to Ms Devi (Third Letter). The Third Letter relevantly provided as follows:

“…

In responding to the allegations I note that you have stated that:

● You were surprised to receive the letter with regards to working in excess of your 40 hour restriction on the occasion of the alleged breach of your visa working rights - pay period ending 12/11/17.

● You are unsure as to why you clocked out so late on one particular day, 2/11/17. Your clock out time was 14:41, while your rostered shift ended at 13:00.

● You could not see this in your ESS, so asked your Facility Manager about it, and they showed you the timesheet in Emplive.

● You thought maybe what had happened was that on "some day recently an ambulance was called for a resident and you stayed with them", but you were not sure if it was this particular day.

● You also thought maybe it could be that you have simply stayed in the staff room chatting with colleagues, or stayed chatting with residents once your shift was over.

● You do not work past your rostered shift end time.

I note that:

● You have been advised previously in a meeting held on 11 August 2017 of the importance of your obligation to not exceed your 40 hour restriction as per your Student Visa conditions. You were also advised where there is any risk of exceeding this restriction due to working late/ being asked to stay back to help, or if you are being offered additional casual shifts, that it is your responsibility as the visa holder to speak with your manager about ensuring you remain within your 40 hour limit. This could be done by reducing other shifts in the fortnight.

Upon further investigation, I have discovered the following:

● You entered a progress note into iCare at 14:37 on 2/11/17.

● Two residents were transferred to hospital on 2/11/17, neither of which was close to your shift end time.

● Of the residents you entered progress notes into iCare for on this date; none of them were the two residents who were transferred to hospital.

● As per Doutta Galla standard practice, there is no requirement for PCA staff to stay with residents who are being transferred — this is the responsibility of the EEN/RN/CCC/FM.

Accordingly, on the balance of probabilities, I have determined that you acted in breach of your student visa conditions, terms and conditions of your employment, and the Doutta Galla Employee Code of Conduct & Practice Standard 2.0 as per the Show Cause letter sent to you on 21 November 2017.

In light of the above, it is Doutta Galla's view that your ongoing right to work under your current visa is invalid until such time as we receive confirmation in writing from the Department of Immigration and Border Protection (DIBP) that you continue to have the right to work.

As such, you will not be permitted to attend for duty pending receipt of DIBP confirmation.

Please note that you will be provided three (3) months from the date of this letter to obtain the written confirmation advice. In order to obtain this confirmation, the breach will need to be reported and the Department will make a decision on it.

You must self-report the occasion of the breach of the working conditions of your Student Visa to the Department of Immigration and Border Protection (DIBP) and provide evidence to me that you have self reported, within 7 days of the date of this letter.

Doutta Galla Aged Services as an employer is obligated to report this to the DIBP also.

In the event that we do not receive written confirmation by this date, 7 March 2018, a decision may be made to terminate your employment in accordance with Clause 9. Automatic Termination of Contract in your employment contract.” 56

[24] As is evident from the above, the Respondent had concluded that Ms Devi had acted, inter alia, in breach of her Student Visa conditions and the terms and conditions of her employment. Ms Devi is advised that she must “self-report the occasion of the breach of working conditions of [her] Student Visa” to the Department within seven days. She is also advised that the Respondent is obliged to report this to the Department. The Respondent did not take any step to make a report until 8 February 2018, 57 the day after, as I later conclude, the termination of Ms Devi’s employment took effect.

[25] Ms Devi’s evidence is that on 7, 8, 11 and 12 December 2017 she contacted the DIBP, now known as the Department of Home Affairs (the Department), and explained that she had clocked off late on one occasion and that she had made some notes in the iCare system after her rostered finish time, but that she was not working. 58 Ms Devi’s evidence is that the Department told her that she was not in breach of her Visa conditions and that in order for a Visa to be cancelled, an investigation would be required to establish that there was a pattern of behaviour and a knowing and deceitful intent to breach the Visa conditions.59 Ms Devi’s evidence is that the Department told her that they would not issue any written confirmation that she was not in breach of her Visa.60

[26] Ms Devi’s evidence is that on 7 December 2017, she emailed Ms Hourigan telling her that she had contacted the Department on two occasions and was told that it would not provide her with a letter. 61

[27] On 8 December 2017, Ms Maree Louise Sharma, sat in on one of the telephone calls Ms Devi made to the Department. Ms Sharma is the wife of Mr Sanjeet Sharma, Ms Devi’s former manager at the Respondent’s Footscray facility. Ms Sharma’s evidence is when Ms Devi told the Department’s representative that she had forgotten to timestamp out by 1.91 hours, the representative enquired whether Ms Devi had consistently breached her Visa conditions to which Ms Devi responded “no”. 62 At some stage on the same day, Ms Devi attended the Footscray facility and spoke with Ms Foster. Ms Devi says that she told Ms Foster that she had contacted the Department but that it had again told her that it would not provide written confirmation that there had been no breach of her Visa conditions.63

[28] Although there is some inconsistency in the evidence of Ms Devi concerning her contact with the Department 64, ultimately Ms Sharma’s evidence corroborated Ms Devi’s evidence about her contact with the Department on 8 December 2017. Ms Sharma’s evidence about the assistance that she provided to Ms Devi in her communications with the Department was not subject to challenge during cross examination. I accept that on that day Ms Devi made contact with the Department about her earlier late clocking off. I also accept that she was told in effect that in order for a Visa to be cancelled there would need to be an investigation to establish the behaviour is a pattern of behaviour of deliberate or deceitful contraventions of the Visa restrictions. Such advice seems to me to be consistent with the scheme of the Migration Act 1958 (Migration Act) to which later reference is made. I also accept Ms Devi’s evidence that she was told by the Department that it would not issue a written confirmation that she had not breached her Student Visa. This seems self-evident. It would be unlikely that the Department would issue a written confirmation that a person was not in breach of a Visa condition without conducting an investigation. It is also unlikely that the Department would issue any form of advisory opinion based on a recount of events by one person without proper enquiry.

[29] The Respondent led no evidence of any step that it took to verify Ms Devi’s explanation of the advice that she had received from the Department. Instead, despite Ms Devi’s advice to the Respondent about her conversation with the Department, it continued to insist on receiving written confirmation. It continued to maintain this position up to and including 7 February 2018. 65It took no step to verify Ms Devi’s claims about the advice she had received from the Department. Taking such a step would not have been difficult for the Respondent. It employs a number of its staff on Student Visas. It has some experience in dealing with the Department or at least doing so through its Migration agent. It did not instruct its Migration agent to make any such enquiries. It is also to be remembered when it received a telephone call from a person named “Salma” purporting to be an employee of the Department, enquiries were made of the Department as to whether it employed a person named “Salma”.66 It is also noteworthy that despite making this enquiry the Respondent did not see fit to enquire of the Department during the same conversation whether it was correct, as maintained by Ms Devi, that it would not provide written confirmation that a Visa holder was not in breach of a Visa condition.

[30] On 11 and 12 December 2017, Ms Devi rang Ms Robinson to explain that she had not worked past her rostered finish time and that she had been told by the Department that she had not done anything wrong. 67 Ms Devi wrote to the Respondent on 14 December 2017 reiterating that she had not done anything wrong.68

[31] Ms Devi says that she contacted the Respondent on numerous occasions and told the Respondent that she had not worked in excess of her rostered finish time, that she had contacted the Department to self-report and that the Department told her that she had not breached her Visa conditions and that it would not be writing a letter to confirm her Visa status. 69

[32] On 2 February 2018, Ms Devi’s legal representatives wrote to the Respondent outlining that if Ms Devi’s shifts were not reinstated she would be forced to conclude that her employment had been terminated. 70 A response was requested by no later than 7 February 2018. On 7 February 2018, the Respondent wrote to Ms Devi’s representative denying that Ms Devi had been suspended from her work duties and reiterated its position that Ms Devi was an illegal worker.71 Based on this response, Ms Devi concluded that her employment had been terminated.72

[33] In its correspondence of 7 February 2018, the Respondent continued to assert that Ms Devi had breached her Student Visa conditions, was “currently an illegal worker for the purposes of any right to work” and maintained that the steps that it had taken (presumably including the requirement that Ms Devi obtain written confirmation from the Department), were consistent with, relevantly “the specific guidelines issued by the Department . . . [and] the terms and conditions of Ms Devi’s contract of employment”. For reasons that will later be explained, its assertion that Ms Devi was “an illegal worker for the purposes of any right to work” was plainly wrong. Similarly, as will later become clear, departmental guidelines set out the preferred means by which verification of Visa status and rights of work are to be ascertained. The guidelines say nothing about the Department providing confirmation or advisory opinions to Visa holders. Moreover, the preferred method of ascertaining Visa status and rights of work set out in the guidelines is also consistent with regulation 5.19 H of the Migration Regulations 1994 (Regulations), to which reference will also later be made. Thus the assertion that it was acting consistently with departmental guidelines is also plainly wrong.

[34] In the course of the conduct of these proceedings, the Respondent in filing supplementary material on 10 May 2018 raised for the first time allegations related to further instances in which Ms Devi worked in breach of her Student Visa conditions. These allegations are made in support of its submission which in essence contends that these instances provide a further basis founding a valid reason for dismissal and justifying the termination of Ms Devi’s employment (noting the Respondent’s principal contention is that there has been no dismissal within the meaning of s 386 of the Act).

[35] Apart from the incident of 2 November 2017, the evidence about the additional instances of Ms Devi having worked in excess of the hours prescribed by the Visa conditions may be summarised as follows.

[36] The Respondent maintains that Ms Devi worked in excess of her 40 hour per fortnight Visa condition by working the full shift that she was allocated for on 8 August 2017 and on other occasions. Ms Robinson gave evidence about these occasions said by her to have been discovered after she decided to delve into the records of Ms Devi concerning her work. 73 Her enquiries disclosed the following:

•  In the fortnight of 6 February 2017 to 19 February 2017, Ms Devi worked 50 hours for the fortnight and her course orientation had commenced on 6 February 2017;

•  In the fortnight of 20 February 2017 to 5 March 2017, Ms Devi worked 40.5 hours for the fortnight and her course was in session;

•  In the fortnight of 7 August 2017 to 20 August 2017, Ms Devi worked 40.5 hours for the fortnight and her course was in session. Ms Robinson said that the Respondent was unable to pick up on this breach as Mr Sharma had amended Ms Devi’s roster and rolled the her hours back to 40 hours for the fortnight;

•  In the fortnight of 21 August 2017 to 3 September 2017, Ms Devi worked 40.75 hours for the fortnight and her course was in session. Ms Robinson said that the Respondent was unable to pick up on this breach as Mr Sharma had amended Ms Devi’s roster and rolled the her hours back to 40 hours for the fortnight;

•  In the fortnight of 16 October 2017 to 29 October 2017, Ms Devi worked 44.93 hours for the fortnight and her course was in session. Ms Robinson said that the Respondent was unable to pick up on this breach as Mr Sharma had amended the roster and rolled the Applicant's hours back to 40 hours for the fortnight. 74

[37] Ms Robinson maintained that Ms Devi had a legal and contractual responsibility to ensure that she did not work in excess of her 40 hours per fortnight Visa condition and that despite this she had accepted a number of optional shifts that resulted in a breach of her Visa conditions. 75

[38] Ms Robinson said that she also extracted the iCare history data to confirm whether Ms Devi had been working. The extraction identified that Ms Devi had been working not only by entering iCare notes but also by conducting medication rounds, administering medication to residents, completing incident forms and completing observations on residents. 76

[39] As to these matters, Ms Devi contended  77 that the Respondent knew of facts that may have supported the new allegations against her, as early as December 2017. Similar allegations had not only been put to Mr Sharma during a disciplinary inquiry process related to Mr Sharma in December 2017 and January 2018, but no step had been taken to put any of this to her.78

[40] In her evidence Ms Robinson agreed that Scott Myles, a HR business partner of the Respondent, had knowledge of iCare entries and clock off times on 24 and 28 October 2017 by Ms Devi sufficient to make an allegation of misconduct against Mr Sharma in January 2018. 79 Ms Robinson also agreed that in January 2018 there was some basis for alleging that Ms Devi had repeatedly breached her Visa conditions.80 Ms Foster said that she was familiar to some degree with the allegations that were made against Mr Sharma, that part of the allegations were that he had rolled back the timesheets of Ms Devi, that someone must have conducted an analysis of data in December 2017 in order to come to that allegation, that Ms Robinson did the analysis and that Ms Foster was involved in this task to some degree.81

[41] Mr Sharma had been interviewed on 4 January 2018 in relation to allegations that he had falsely adjusted Ms Devi’s timesheet to comply with her 40-hour Visa restriction, and that in doing so he had underpaid her for actual hours worked. 82 During the interview, Scott Myles, the person conducting the interview, is recorded as saying “there has been repeated times she has been rolled back.”83Mr Sharma is recorded as suggesting that “you’ll have to confirm that with Preeti Devi” and “you need to talk to Preeti Devi herself”.84 There is no evidence that this occurred.

[42] The Disciplinary Inquiry Report into allegations made against Mr Sharma, 85 sets out the documents the Respondent relied on in support of the allegations against him including Emplive records for 10 separate occasions, and iCare notes allegedly made outside of Ms Devi’s rostered shifts on a number of dates including 24 and 28 October 2017. These same documents form the basis of some of the new allegations against Ms Devi in Ms Robinson’s evidence. At page 23 of the Disciplinary Inquiry Report, there is a conclusion that these “are instances where Ms Preeti Devi’s recorded hours were 30 minutes or more above rostered shift hours and a breach of her Visa Conditions and failing to meet the obligations of Ms Preeti Devi . . .”

[43] Ms Robinson gave evidence that as at 8 February 2018 the Respondent was “aware of further breaches which had occurred in August 2017 and advised the DIBP of this”. 86 However, it is apparent that as at February 2018, its knowledge went well beyond any alleged breaches in August 2017. Ms Robinson’s own evidence was that around 7 or 8 February 2018, she was finalising the audit of the Applicant’s hours worked.87 The audit document analyses the primary data that is said to support the new allegations. The analysis also provided the foundation on which Ms Robinson instructed Ms Hourigan to file a report with the Department.88 On 13 March 2018, the date on which the Respondent filed its Form F3 response to Ms Devi’s unfair dismissal application, it knew about these matters, but it did not raise them nor otherwise do not rely on them.

[44] Evidence given by Ms Foster concerning the Respondent’s knowledge of new allegations is vague. Ms Foster’s evidence about when she sat down with Ms Robinson and looked at the allocation sheets is of little assistance. Her evidence was that she looked at them “earlier this year”. 89 She said that it was possibly not before 13 March 2018 but she was not sure.90 Ms Foster said the Respondent was “looking for signatures to see what time she was administering medications”.91

[45] Having regard to the above, on balance I accept that the Respondent had sufficient knowledge of much of the material upon which the new allegations are based on or before 8 February 2018.

[46] Contrary to Ms Devi’s submission however, it does not follow that merely because the Respondent had knowledge of the allegations before or at around the time of the dismissal and did not act on them, that those matters cannot provide a valid reason for the dismissal. This is not a case of wrongful dismissal where often there will arise the question whether material that is the product of after-acquired knowledge can be relied upon to justify a dismissal that was otherwise wrongful. 92 A question in determining whether a dismissal was harsh, unjust or unreasonable is whether there was a “valid reason” for the dismissal related to an applicant’s conduct or capacity. Plainly, this is not confined to an enquiry as to the reason for the dismissal given by the employer. If other conduct which is proven, which though not relied upon by the employer to justify the dismissal, nonetheless may provide a valid reason, the Commission is entitled to have regard to that conduct in assessing whether there was a valid reason. Equally, the issue whether an employer had knowledge of that conduct before the time of the dismissal but chose not to rely upon it, is relevant in assessing whether there was a valid reason but is just one factor. The whole of the circumstances need to be taken into account. Similarly, though the conduct may provide a valid reason, the fact that an employer did not rely upon it initially as justifying the dismissal might be a factor to be considered in assessing the weight to be attributed to a conclusion that that conduct provided a valid reason for dismissal. Alternatively, it may be a factor that the Commission takes into account in considering “any other matter” that it considers relevant.

[47] Given the potentially serious nature of these new allegations, it must be accepted that since the allegations are essentially that Ms Devi has breached a contract of employment in a serious way, or as the Respondent put it a fundamental breach of the contract of employment such that the Respondent was entitled to rely upon the doctrine of repudiation, 93 there will need to be established that the breach was serious in nature which involved a repudiation of the essential obligations under the contract of employment or conduct which is repugnant to the relationship of employer and employee.94 Accepting an employee’s repudiation is in effect summary dismissal of the employee. It may not be a dismissal within the meaning of s.386 of the Act at all, but this point was not argued so I take the matter no further.

[48] I must confess in having some difficulty in accepting the Respondent’s contention that the conduct, even if it be accepted to have occurred, is repudiatory conduct that is so serious as to be repugnant to the employment relationship in circumstances where the Respondent maintains that it did not dismiss the Applicant, thus did not act on the alleged repudiation, and that it would reinstate Ms Devi’s shifts upon receiving a written clearance from the Department.

[49] In any event, for the following reasons I am not persuaded that the conduct, characterised by the Respondent as a breach of contract, as set out by Ms Robinson occurred or was sufficiently serious to provide foundation for a valid reason for dismissal.

[50] For the period of 6 to 19 February 2017, Ms Robinson’s evidence was that she was awaiting a decision from the Department and would follow their advice and was not 100% sure. 95 In other words, a breach would only be established if Ms Robinson was advised by the Department that the hours alleged to have been worked by Ms Devi during this period was a breach of her Visa conditions. This makes sense in that the contract in essence is designed around the hours’ limitations in the Student Visa. In any event, the allegation depends upon a construction advanced by the Respondent as to when Ms Devi’s university course is in session. The Student Visa permits Ms Devi to work unlimited hours when her course is out of session. The hours that were worked by Ms Devi during this period were during the orientation period. To this end, the Respondent relies upon the fact that the Australian Catholic University, the Institute at which Ms Devi was studying, notes orientation which in February 2017 occurred between 20 February 2017 and 24 February 2017, and international orientation which occurred between the period 13 February to 17 February 2017 forms part of the “academic year 2017”.96 This is, respectfully a stretch. The Department considers that a course will be in session for the duration of the advertised semesters, including exam periods and when the Visa holder is undertaking another course, during a break from your main course and points from that course will be credited to Visa holder’s main course.97 The advertised semester so far as Ms Devi is concerned commenced on 27 February 2017.98 Work undertaken before that period, and relevantly in relation to the period alleged, was not work undertaken whilst Ms Devi’s university course was in session and thus not subject to the hours of work limitation specified in her Visa condition restriction on hours.

[51] For the period 20 February to 5 March 2017, Ms Robinson’s evidence about awaiting departmental advice applies also to this period. 99 In any event, the allegations concerning the period 6 to 19 February and the period 20 February to 5 March 2017 were already investigated in August 2017 and it was concluded that the Applicant did not work in breach of her Visa condition. Moreover, as to the latter period, any work performed by Ms Devi between 20 February and 26 February 2017, was for the reasons given earlier, work undertaken whilst her course was out of session and thus not subject to the Visa condition restriction on hours.

[52] As to the period 7 August to 20 August 2017, Ms Devi denied working more than 40 hours during this period. 100 Mr Sharma gave evidence that said that entries on the timesheet would be based on the allocation sheet for that day which would have been authorised by the Clinical Care Supervisor on duty on that day (8 August 2017).101 Mr Sharma’s evidence was that sometimes it is not reflected in the allocation sheet but is reflected in the diary and that he gets direct reports of what happened on that day.102 Mr Sharma denied that the handwriting on the allocation sheet for 8 August was his103 and that it could be the Registered Nurse or Pankajkumar Shah.104 Pankajkumar Shah was the Registered Nurse on duty on 8 August 2017 and Leena Binil was the Clinical Care Supervisor.105The Respondent did not produce an allocation sheet for 11 August 2017. Ms Robinson’s explanation was that an administrative shift would not be recorded on an allocation sheet.106 However, most of the allocation sheets produced by the Respondent107 contain entries for administrative shifts as well as clinical staff, kitchen staff, lifestyle and leisure staff. Ms Robinson said this evidence was a mistake, that it was possible that there was an allocation sheet for 11 August 2017.108 On the whole, the Respondent’s evidence as proof that Ms Devi worked during this period contrary to the hours restriction of her Visa conditions is unsatisfactory and certainly insufficient to establish that that was the case.

[53] As to the period 21 August to 3 September 2017, Ms Robinson in her evidence ultimately agreed that when she alleged Ms Devi worked 7.5 hours on 23, 24 and 25 August 2017, she did not know for certain that those were the actual hours worked. 109 Ms Devi denied working more than 40 hours in this pay period. I am thus left with Ms Devi’s uncontroverted evidence that she worked and was paid for 37.75 hours during this pay period and that she worked from 9:00am until 4:00pm on 23, 24 and 25 August 2017 with a half hour break each day.110 Mr Sharma gave evidence that it was his usual practice to send Ms Devi home at 4:00pm when she covered Maria D’Ambrosio’s reception shift because Ms Devi was not authorised to do end of day tasks like handling petty cash and balancing the till.111 Ms Devi said she could not remember sending any emails from Ms D’Ambrosio’s email address in the past and denied she could use D’Ambrosio’s login and email account when covering the reception shift.112Mr Sharma gave evidence that Ms Devi would not login to Ms D’Ambrosio’s email when covering the reception shift,113 and could not recall whether Ms Devi had sent in the past one email from Ms D’Ambrosio’s email address.114 The Respondent did not produce any email which it contended were sent by Ms Devi from Ms D’Ambrosio’s email account. These emails are also referred to in the “evidence” column of the Audit Report for 23, 24 and 25 August 2018, but nonetheless were not produced. I am thus not persuaded that the allegation that Ms Devi worked during this period in breach of her Visa conditions to have been made out.

[54] Finally, as to the period 16 October to 29 October 2017, Ms Devi’s evidence was that she believes she worked 37.5 hours during this fortnight. 115 As to work on 16 October 2017, Ms Robinson agreed that the only alleged 1:00pm medication round entry could have been a 12:00 or a 1:00116 and Ms Devi’s evidence was that she could not remember whether she finished early that day but that it was possible as she had been feeling sick around that time.117 The time at which she clocked off appears to be after 1:00pm, but again in and of itself that is not evidence that Ms Devi worked during that period in contravention of her Visa condition. Ms Devi’s evidence was that she did not work on 17 October 2017, that she was not rostered to work on this day and that the roster column on the EmpLive timesheet is empty.118 Ms Robinson’s evidence was that she was aware Ms Devi said she did not work on that day.119 The Respondent has not produced an allocation sheet for 17 October 2017, nor has it produced the EmpLive biometric (which is the primary data showing clock in and clock out times) for 17 October 2017, nor does it contend that any medication charts for 17 October 2017 are relevant. Thus without any primary material, and faced with a denial by Ms Devi that she worked on this date, the audit report as a foundation for the allegation is in my view insufficient to make good the allegation.

[55] As to work on 20 October 2017, Ms Devi gave evidence that she could not see any 2:00pm medication entry on 20 October 2017 and that as far as she can recall she worked her usual 7:00am to 1:00pm shift. 120 Ms Robinson also said that she could not see an entry for a supplement drink at 2:00pm.121 All that the evidence establishes is that she clocked off late on this day. The material is insufficient to establish that she worked in breach of her Visa conditions. Ms Devi agreed she worked 4:00pm until 9:00pm on 24 October 2017 and 7:00am until 1:00pm on 27 October 2017.122

Consideration

(i)Whether Ms Devi was “dismissed”

[56] A person has been unfairly dismissed in the circumstances set out in s.385 of the Act which provides:

“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.”

[57] Dismissed is defined in s.386 of the Act as follows:
“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; 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.

(1) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(1) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part”.

[58] It is necessary to spend some little time in determining whether Ms Devi has been “dismissed” within the meaning of s.386 of the Act and, if so, the date on which she was dismissed.

[59] The Respondent advances a number of alternative (and inconsistent) constructions of the circumstances which led Ms Devi to make this application. This is not meant to be a criticism of the Respondent but simply a recognition that it maintains that Ms Devi’s employment with the Respondent has not been terminated at all, but if there has been a termination of it, it was not terminated on the Respondent’s initiative.

[60] The Respondent maintains that as at the date it filed its final written submissions, Ms Devi's employment has not been terminated. In support of this contention, the Respondent relies on the evidence of Ms Robinson who maintained at the hearing that Ms Devi remains an employee of the Respondent and if Ms Devi had produced the information requested of her, which verified her Visa remained valid after reporting the incident, it would have returned her to the roster. 123It contends that the termination process has not been undertaken.124It also relies on the fact that Ms Devi logged onto the Respondent’s employee rostering system as recently as 24 April 2018125 and as Ms Devi conceded, only employees of the Respondent are able to access this system.126

[61] That the Respondent has not processed Ms Devi’s termination or that she continues to be able to access the Respondent’s rostering system is not indicative of the continuation of an employment relationship. It is just as likely to show that the Respondent in breach of the National Employment Standards has failed to pay Ms Devi’s entitlements on the termination of her employment and that the Respondent has simply not taken steps to close off Ms Devi’s access to its rostering system.

[62] The Respondent also relies on the letter dated 7 December 2017 from Sarah Hourigan of the Respondent, 127 requesting that Ms Devi report the breach of her Visa conditions to the Department, in support of its contention that the Applicant's employment has not been terminated.128It says that the letter is not a communication from the Respondent terminating Ms Devi’s employment but that it merely advises Ms Devi that should she fail to comply with the requests described in the letter, her employment “may” be terminated.129

[63] None of this assists the Respondent. The Respondent has not provided work to the Applicant since 26 November 2017. More importantly, it has not made any payment to Ms Devi for work she would otherwise have performed had she been rostered on and after 26 November 2017 pursuant to the hours for which she was contracted to perform each week. Ms Devi was not a casual employee – she was employed as a part time employee. 130 For the reasons that will become apparent shortly, I consider that a proper construction of the events is that the Respondent, in breach of its contract with Ms Devi, suspended Ms Devi without pay from her employment in circumstances where it had no lawful right under the contract or otherwise to suspend without pay. In the result, on 7 February 2018, Ms Devi elected to accept the Respondent’s repudiation of the contract and brought it to an end. That was a dismissal within the meaning of s.386 which took effect on that day.

[64] Ms Devi’s employment is subject to a written contract of employment executed on or about 4 August 2015. 131 The position to which the contract relates is that of a “Food Services Assistant”. 132 As noted earlier, from the beginning of 2017, Ms Devi began working as a PCA and shortly thereafter began working as a “Med Assist” PCA. But apart from the change in position, and presumably in remuneration payable and conditions under the relevantly applicable industrial instrument, no party suggested that the contract did not continue to govern the employment relationship, and I proceed on that basis.

[65] The heading of the contract makes clear that it is a “Visa Restricted – Student Contract of Employment – Part-Time Employment”. The operative terms of the contract require Ms Devi to provide the Respondent with a confirmation of course enrolment, details of the course including the commencement date, semester dates and examination periods and the completion of a statutory declaration confirming that she has commenced the course. 133

[66] The contract also makes provision for hours of work. Relevantly, Ms Devi is not permitted to work in excess of 20 hours per week, 134 she must not accept or request more than 20 hours per week135 and she is required to immediately inform the Respondent if she has been asked to work in excess of 20 hours per week.136

[67] By clause 7 of the contract, there are special obligations created. Ms Devi must ensure that the total number of hours that she works with the Respondent and any other employer do not breach her Visa conditions; 137 she is required to inform the Respondent within 24 hours of any change to her immigration Visa status including in relation to any conditions relating thereto;138and she must furnish to the Respondent within 48 hours any evidence required by the Respondent in support of Ms Devi’s current Visa status or immigration status.139

[68] Clause 9 of the contract is headed “Automatic Termination of Contract” and provides:

“9.1 this contract will automatically terminate if there is any change to one or more of the following:

(i) Visa status

(ii) Immigration status

(iii) Right to work in Australia” 140

[69] Clause 15 of the contract provides that Ms Devi will obey all reasonable and lawful directions and instructions given by the Respondent or a delegated supervisor. 141 By clause 16, Ms Devi authorises the Respondent to obtain information from the Australian Department of Immigration and Citizenship (now known as the Department of Home Affairs) regarding her immigration status and, presumably for that and other related purposes, authorises the Respondent to disclose her given name, surname, passport number country of passport and date of birth.142

[70] There is nothing in the contract of employment nor in the applicable industrial instrument which permits the Respondent to suspend Ms Devi’s employment without pay. To use the language of the circumstances of this case, there is nothing in the contract of employment nor in the applicable industrial instrument 143 which permits the Respondent to maintain the contract of employment on foot whilst not providing work to and not paying Ms Devi until such time as she self-reports “the occasion of the breach of working conditions of [her] student Visa to the Department . . . and provide evidence . . . that you have self-reported”.144

[71] It is evident that the Respondent believes that Ms Devi lost the right to work when it formed the view that she had breached her Student Visa conditions in relation to work said to have been performed on 2 November 2017 and that the employer would commit an offence under the Migration Act if it continued to provide Ms Devi with shifts after that time. 145 I progress with my respectful view the Respondent’s view about the consequences of any alleged contravention of Ms Devi’s Student Visa conditions were misguided. In order to properly understand how it is that the Respondent arrived at its view and believed that it had such a right to in effect suspend without pay, it is necessary to refer to some documents and to some provisions of the Migration Act. On or around 11 April 2016, Ms Robinson drafted and circulated a staff memorandum with the subject line “Visa Restrictions – Employee Obligations”.146 Relevantly, the memorandum provided the following:

“Notice to all staff currently working under Visa conditions:

Staff who are working on visas need to be aware that if they work in breach of a Visa condition under current legislation there right to work automatically terminates – that is as soon as you breach your Visa conditions you no longer have a right to work in Australia the myself report your breach to the Department of Border Control and immigration.

Sadly, over the last few months we have become aware of a number of staff working in breach of their visa conditions by:

1. Accepting shifts or hours of work in breach of the 40 hour per fortnight restriction whilst their course is in session

2. Withdrawing from or failing to attend courses of study in breach of their visa conditions

3. Accepting employment with two employers and working 40 hours per fortnight with both employers,

4. Failing to provide supporting documentation regarding their course of study; including documentation confirming when their course is in session and evidence of satisfactory progression through their coursework.

Your obligations under the Migration Act 1958:

•  You must not accept shifts or hours of duty in excess of visa restrictions —the visa restrictions apply to you and it is your obligation to comply with them. Excuses of 'an RN offered me the shift so I thought it was ok' will NOT be accepted by the Department of Border Control and Immigration as an acceptable reason for breaching your visa conditions.

•  40 hours restrictions apply to all hours worked —irrespective of whether you work with one or more employers.

•  Each year of your course of study you must provide documentation confirming your enrolment and the dates that your course is in session.

•  At the end of each year of study you must provide an academic transcript proving your satisfactory progression through your course of study.

•  It at any point you fail in your course of study, or withdraw from your course of study, you must immediately notify Doutta Galla and the Department of this occurring.

•  If you are on a spousal visa, ensure that your spouse abides by all the conditions of his/her visa and notify Doutta Galla and the Department if any visa conditions are breached.

If a visa condition is breached:

If at any point you actin breach of your visa, or are suspected to be acting in breach of your visa conditions, please note that the following may occur:

1. You will be immediately removed from the roster

2. You will be notified of the known or suspected breach

3. You will be invited to provide evidence to support that you are not in breach of your visa conditions and establish that you have the right to work

4. If the evidence demonstrates that you have breached your visa conditions and no longer have the right to work your employment may be terminated in accordance with the terms and conditions of your contract of employment.

5. Doutta Galla will notify the Department of Border Control and Immigration of the visa breach and the termination of your employment.

6. You may face cancellation of your visa and deportation from Australia.” 147 [Emphasis in original]

[72] In its correspondence to the solicitors for Ms Devi of 7 February 2018, the Respondent set out amongst other things that it “is obliged both under the Migration Act 1958 . . . and specific guidelines issued by the Department . . . to consider that (given that she worked in breach of her visa conditions) Ms Devi is currently an illegal worker for the purposes of any right to work”. 148

[73] The departmental guidelines to which reference is made is a document titled “Legal workers – a guide for employers”. 149

[74] That guideline relevantly provides:

“Australian employers could face infringements or civil penalties if they allow illegal work regardless of whether they knew someone was an illegal worker. We expect employers to take reasonable steps to make sure they are not employing, referring or contracting illegal workers.

This guide sets out a range of steps employers can take to make sure they are complying with their obligations.

We are focussed on responding to those employers that wilfully take part in illegal work, not penalising employers who act in good faith.

. . .

Definition of an illegal worker

An illegal worker is a non-citizen who is working without a valid visa or working in breach of a visa condition. Not everyone who comes to Australia on a visa has permission to work.

Definition of a legal worker

Australian citizens, New Zealand citizens and Australian permanent residents are legal workers and have unlimited permission to work in Australia.

Some Australian visas have work limitations that could include not being able to work at all or only being able to work with a certain employer or a specific number of hours.

An Australian visa holder who is not in breach of their visa conditions is also a legal worker.” 150

[75] Despite the guideline using the terms “illegal worker” and “legal worker” and setting out respective definitions thereof, no such term is to be found in or defined by the Migration Act. The Migration Act defines “lawful” and “unlawful” non-citizens in sections 13 and 14 as follows:

13 Lawful non-citizens

(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14 Unlawful non-citizens

(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

[76] It seems clear that the question of whether a person is a lawful noncitizen or an unlawful noncitizen turns on whether the person “holds a visa that is in effect”.

[77] There is no issue that at the time the Respondent made a decision to not provide further work to Ms Devi and since that time, Ms Devi has held a Visa that is in effect.
[78] Section 41 of the Migration Act relevantly provides:

41 Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

General rules about conditions

(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

(i) any work; or
(ii) work other than specified work; or

(iii) work of a specified kind.

[79] Section 116 of the Migration Act vests power in the Minister to cancel a Visa 151 if satisfied in respect of particular circumstances. It relevantly provides:

116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

. . .

(b) its holder has not complied with a condition of the visa

      . . .”

[80] As Ms Devi has pointed out, 152prior to 13 April 2013, the Minister was obliged to cancel a Student Visa if satisfied that the Visa holder had not complied with the work condition. The Minister had no discretion to consider the particular circumstances of that student. In 2011 the Hon Michael Knight AO completed the Strategic Review of the Student Visa Program 2011. One of the recommended changes to Student Visas was that the mandatory cancellation requirement for working in excess of the hours allowed be removed, giving the Minister the discretion to determine cancellation in particular cases on their merits.153 The Explanatory Statement accompanying the introduction of that amendment provides:

 The amendments seeks to repeal paragraph 2.43(2)(b) so that breaches of these conditions no longer result in mandatory cancellation, but are treated under the existing discretionary provisions of section 116 of the Migration Act 1958 … that provide that a visa may be cancelled on certain grounds. This will enable decision makers to take the circumstances of the student into account before deciding whether cancellation is warranted. This will provide greater fairness to Student visa holders.

[81] Paragraph 2.43(2)(b) of the Migration Regulations 1994 was subsequently repealed. From 13 April 2013, the Minister’s power to cancel Student Visas was discretionary only. The notion of fairness to a Student Visa holder is also reinforced by other provisions of the Migration Act.

[82] Specifically, Subdivision E of Part 2 of Division 3 of the Migration Act sets out the procedure for cancelling a Visa under, relevantly s.116. It is instructive to set out that procedure in full below:

Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia

118A Exhaustive statement of natural justice hearing rule

(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

119 Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b) invite the holder to show within a specified time that:

(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:

(a) under a provision other than section 116; or

(b) to which Subdivision F applies.

120 Certain information must be given to visa holder

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for cancelling a visa; and

(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

(c) was not given by the holder; and

(d) was not disclosed to the holder in the notification under section 119.

(2) The Minister must:

(a) give particulars of the relevant information to the holder; and

(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

(c) invite the holder to comment on it.

(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

121 Invitation to give comments etc.

(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:

(a) in writing; or

(b) at an interview between the holder and an officer; or

(c) by telephone.

(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:

(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(a) a later time within that period; or

(b) a time within that period as extended by the Minister for a prescribed further period;

and then the response is to be given at an interview at the new time.

(6) This section is subject to sections 125 and 126.

122 Prescribed periods

Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:

(a) visas of a specified class; or

(b) visa holders in specified circumstances; or

(c)visa holders in a specified class of persons (which may be visa holders in a specified place); or

(d) visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances.

123 Failure to accept invitation not require action

If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.

124 When decision about visa cancellation may be made

(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(a) the holder responds to the notice;

(b) the holder tells the Minister that the holder does not wish to respond;

(c) the time for responding to the notice passes.

(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

(a) the comments are given;

(b) the holder tells the Minister that the holder does not wish to comment;

(c) the time for commenting passes.

125 Application of Subdivision to non-citizen in immigration clearance

If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.

126 Application of Subdivision to non-citizen in questioning detention

(1) If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.

(2) If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.

127 Notification of decision

(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

(2) Notification of a decision to cancel a visa must:

(a) specify the ground for the cancellation; and

(b) state whether the decision is reviewable under Part 5 or 7; and

(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii)who can apply for the review; and

(iv) where the application for review can be made.

(3) Failure to give notification of a decision does not affect the validity of the decision.

[83] As should be evident from the above, the cancellation of a Visa in circumstances where there is an allegation of a breach of the condition is by no means automatic. Certainly there is no automatic cancellation and a Visa is not rendered void or invalid merely because an employer has a view or forms a belief that a particular Visa holder has worked in breach of a Visa condition. Apart from the terms of Subdivision E of the Migration Act, bare minimum requirements of procedural fairness dictate that that could not be the case.

[84] Part 2 of Division 12 of the Migration Act sets out a number of offences. Section 235 sets out offences in relation to a Visa held by a noncitizen that is subject to a condition restricting work. That section provides as follows:

235 Offences in relation to work

(1) If:

(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and

(b) the non-citizen contravenes that condition;

the non-citizen commits an offence against this section.

Note: Subdivision C of this Division also contains offences relating to work by a non-citizen in breach of a visa condition.

(2) For the purposes of subsection (1), a condition restricts the work that a non-citizen may do if, but not only if, it prohibits the non-citizen doing:

(a) any work;

(b) work other than specified work; or

(c) specified work.

[85] Section 245AC makes provision for the following:

245AC Allowing a lawful non-citizen to work in breach of a work-related condition

(1) A person (the first person) contravenes this subsection if:

(a) the first person allows, or continues to allow, another person (the worker) to work; and

(b) the worker is a lawful non-citizen; and

(c) the worker holds a visa that is subject to a work-related condition; and

(d) the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a).

(2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:

(a) using a computer system prescribed by the regulations to verify that matter;

(b) doing any one or more things prescribed by the regulations.

Offence

(3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty: 2 years imprisonment.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 90 penalty units.

Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

[86] Section 245AH of the Migration Act sets out that which is the meaning of “work” and of “allows” as follows:

245AG Meaning of work and allows to work

(1) In this Subdivision:

work means any work, whether for reward or otherwise.

(2) In this Subdivision, a person allows a person to work if, and only if:

(a) the first person employs the second person under a contract of service; or

(b) the first person engages the second person, other than in a domestic context, under a contract for services; or

(ba) the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for:

(i) the first person; or

(ii) another participant in the arrangement or any such arrangement; or

(c) the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or

(d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services within the meaning of the Criminal Code (see the Dictionary to the Criminal Code); or

(e) the prescribed circumstances exist.

(3) In paragraph (2)(d):

premises means:

(a) an area of land or any other place, whether or not it is enclosed or built on; or

(b) a building or other structure; or

(c) a vehicle or vessel.

[87] As will be evident from the above, s.245AC creates both criminal and civil liability in respect of the same contravention, save that intention is an element of criminal liability whereas for the purposes of civil liability it is unnecessary to prove the state of mind of the person against whom an allegation of contravention has been made.

[88] It is also evident that a contravention will relevantly occur in relation to a lawful noncitizen who holds a Visa that is subject to a work-related condition if a person allows, or continues to allow, a worker to work and the worker is in breach of the work-related condition solely because of doing the work in the circumstances referred to in paragraphs 245AC(a) when read, relevantly for present purposes, with 245AG(2)(a) or (ba). Having regard to the definition of “allows”, it is also clear a person will not have contravened the section merely because a worker works hours in excess of those that attach to the workers Visa condition. On a proper construction of the definition of “allows”, in the context of its use in s245AC, it seems evident that relevantly the contract of service to which reference is made is a contract of service to work or a relevant arrangement to work the hours that are in breach of the Visa condition. So much is clear from the constituent elements of s.245AC(1), as the work undertaken by the worker that is in breach of the condition must be the work that the employer allows or continues to allow the worker to perform. It seems to me that a worker who performs work outside of the contracted hours or arrangement that is undertaken without an employer’s knowledge or consent, might breach the workers Visa condition but without more is unlikely to expose the employer to liability for a contravention s.245AC(1) of the Migration Act.

[89] Put another way, by reason of paragraph 245AC(1)(d), an employer will contravene s.245AC(1) only if the worker is in breach of a work-related condition solely because of doing the work allowed to be done, which is work referred to in paragraph 245AC(1)(a). That is, an employer can only breach the subsection by allowing work that is in itself a breach of a Visa condition. Therefore, regardless of whether there was a breach of Ms Devi’s Visa conditions in the past, any subsequent work performed in accordance with the contract of employment which was consistent with the Visa restrictions could not result in the Respondent contravening s.245AC(1).

[90] In any event, s.245AC(2) read with s.245AC(6) provides a defence if, relevantly the Respondent takes reasonable steps at reasonable times to verify that Ms Devi is not in breach of the work-related condition solely because of doing the work referred to in paragraph s. 245AC(1)(a). This may be done by taking steps including (but not limited to) using a computer system prescribed by the Regulations to verify that matter and/or by doing any one or more things prescribed by the Regulations. In this regard, Regulation 5.19H of the Regulations provides the following:

Allowing a lawful non-citizen to work in breach of a work-related condition

(1)  For paragraph 245AC(2)(a) of the Act, the computer system operated by the Department, and known as "Visa Entitlement Verification Online", or " VEVO", is prescribed.

(2)  For paragraph 245AC(2)(b) of the Act, each of the following is a prescribed thing:

(a)  the entry into a contract under which a party to the contract performs either or both of the following functions:

(i)  verifying that a person has the required permission to work in Australia (however that is described in the contract);
(ii)  supplying persons who have the required permission to work in Australia (however that is described in the contract);

(b)  the inspection of:

(i)  a document that appears to be the worker's Australian passport; or
(ii)  a document that appears to be the worker's New Zealand passport; or
(iii)  a document that appears to be the worker's Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(iv)  a document that appears to be a certificate of evidence of the worker's Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(v)  a document that appears to be the worker's Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or
(vi)  a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or
 (vii)  a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.

Example:    An example of a form of identification is a driver's licence.

Note: Subsection 245AC(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in that subsection, including (but not limited to) either of the following steps:

(a)    using a computer system prescribed by the regulations to verify that matter;

(b)    doing any one or more things prescribed by the regulations.

[91] It seems to me that there is nothing in the material before me, even if it be accepted that Ms Devi worked in excess of the hours prescribed in her Visa conditions on the occasions (or some of them) stipulated by the Respondent, which suggests that the Respondent allowed her to work in breach of her Visa conditions on those occasions. Much less can it be said that by merely continuing to allow Ms Devi to work the hours prescribed in her contract of employment on or after 26 November 2017 that the employer would be in breach of the Migration Act. By providing work to Ms Devi consistent with the contract of employment, that is, for 20 hours per week, the Respondent would be doing no more than allowing Ms Devi to work hours which are permitted by the Visa condition.

[92] The Respondent’s view to the contrary was erroneous. The Respondent’s submissions which are to the effect that because of the operation of s.235 and s.245AC (or s.245AD) of the Migration Act, the employer was obliged to prohibit Ms Devi from working at all or risk committing an offence under the Migration Act 154 are therefore rejected.

[93] It should be unnecessary to state that a contract of employment may be terminated in response to a repudiation of the contract by the other party. The question whether there is a repudiation of the contract is one of fact. 155

[94] The conduct that amounts to repudiation may be described in two ways, each of which will give rise to an election to terminate on the part of an innocent party. First, the conduct amounting to a breach of contract will be taken to be a repudiation or renunciation in that it evinces an intention on the part of the party in breach not to be bound by the contract or to fulfil it only in a manner substantially inconsistent with that party’s contractual obligations. 156

[95] In Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) 157(Romero) a Full Court of the Federal Court said of this first kind of repudiatory conduct as follows:

“. . . In the context of renunciation, the intention or acts of the defaulting party can be relied upon to reach such a conclusion. In Byrnes (at [70]-[80]) Allsop J explained that if the degree or nature of the conduct is such as would be described as serious or substantial, it may be that it evinces an intention not to be bound and thus amounts to what Gleeson CJ, Gummow, Heydon and Crennan JJ termed “renunciation”.” 158

[96] Secondly, there may be conduct that is a breach of an essential term that itself, or of an innominate term that is of a sufficiently serious nature that it, gives rise to a right to terminate. 159

[97] In Romero, after discussing the two types of conduct that may amount to repudiation the Full Court observed that:

“On this topic of the nature of a breach of an innominate term sufficient to give rise to a right to terminate, these points are established from Koompahtoo and Byrnes:

•  There is much to be said for distinguishing categories of repudiation between renunciation and substantial breach warranting termination. In the case of renunciation, the intention or the acts of the defaulting party can be distilled as the relevant factor. There is an evincing of an intention not to be bound by the obligations of the contract, or whilst intending to comply, only to do so in a manner inconsistent with those obligations and in no other way. In the case of substantial failure of performance, one looks to the nature and consequences of the breach(es), which may or may not direct attention to acts of the other contracting party.

•  The necessity, in this category of breach, for the effect of the failure or breach to affect the substance of what was intended to be contracted for is reflected in the damages recoverable upon termination: the loss of the benefit of the whole contract.

•  However one expresses it, the essential element is that it has so changed or departed from the promised performance of the contract that the party not in default can be seen to have been deprived of substantially the whole of the benefit which it was intended that he, she or it would obtain from the contract.” 160

[98] When an innocent party is faced with conduct amounting to repudiation, that party may elect to accept the repudiation and treat the contract as having been terminated, or the innocent party may elect to affirm the contract. The law in Australia in this regard is and has always been that a contract of employment is only terminated once there is an acceptance of the repudiation. 161 This is known as the elective theory of termination.162

[99] There are three elements that are inherent in the necessity of an innocent party to make a choice or election to bring about the termination of the contract of employment. These elements were conveniently summarised by Justice Vickery in Hodgson v Amcor Ltd 163 as follows:

“For the doctrine of election to operate, the authorities reveal that three elements must be present:

(a)the elector must possess the requisite degree of knowledge as to the existence of the rights as between which an election must be made. There is some variance in the case law as to the degree of necessary knowledge, however, it has been held to be sufficient if the circumstances give rise to the elector having knowledge of the facts which bring the inconsistent legal rights into operation;

(b)the rights in question must be inconsistent; and

(c)there must be words of conduct sufficient to amount to the making of an election between the inconsistent rights which the elector possesses so as to effectively forfeit the right not availed of.” 164

[100] The third element described above is clearly about communication of the election by the innocent party to the contravening party. Communication may occur by words or conduct of the choice that is made between the inconsistent rights which the innocent party possesses so as to effectively forfeit the right which the innocent party does not avail to him or herself. 165 That an election has been made may be inferred from the conduct of the innocent party166, however whether by words or conduct, as the High Court observed in Sargent v ASL Developments Ltd:167

“. . . The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other.” 168

[101] Returning then to the facts in this case, at all material times Ms Devi had the right to work in Australia. She held a valid Visa with a working hours’ restriction as a condition. She was, to use the nomenclature of the Migration Act, a lawful noncitizen. She had provided proof of a valid Visa to the Respondent prior to commencing employment. Verification of Visas can be conducted online through the website of the Department. This may be undertaken through that which is described as Visa Entitlement Verification Online (VEVO). The minimum recommendations for employers about conducting VEVO checks is that checks should be conducted before a non-citizen commences work, within two days of Visa expiry dates and when the non-citizen’s circumstances change. It also advises that if a non-citizen is a bridging Visa holder and VEVO does not show a Visa expiry date, it is good business practice to check every three months that the non-citizen still has permission to work. 169 Ms Hourigan’s evidence was that it was part of her role relating to employees working on Visas to conduct VEVO checks.170

[102] There is no evidence that the Department or the Minister has determined that Ms Devi has breached worked in breach of her Visa condition, that she has otherwise contravened the Migration Act or that she has lost the right to work in Australia. There is no evidence that Ms Devi may be deported or that this is an outcome which, as suggested by the Respondent, “may result from the Applicant’s report”. 171

[103] Ms Hourigan’s evidence was that that she conducted a VEVO check of Ms Devi’s Visa status on 27 April 2018, which showed that Ms Devi held a valid Visa and the right to work a maximum of 40 hours per fortnight whilst her course is in session. 172 A VEVO check produced by Ms Devi and generated on 13 February 2018 is to the same effect.173 It discloses that Ms Devi was granted a Student Visa on 8 September 2017, that its expiry date is 15 March 2019 and that the status of the visa is “in effect”. Ms Robinson gave evidence that Ms Devi had not been rostered to work “due [to] issues with her visa conditions.”174 That this is the reason that the Respondent has not provided work is not disputed, nor may it be disputed that this is Ms Robinson’s belief, but it is not one that is either factually or legally correct, or on the basis of the material before me, is the belief objectively reasonable. On the evidence before me, there is no issue as to Ms Devi’s Visa or any condition attaching thereto. There is no material which suggests that at the time that the Respondent alleged that Ms Devi had contravened her Visa conditions, or at the time that it made its decision not to offer further shifts to Ms Devi and not to pay her, or at any time up to and including the dates on which the two VEVO checks were conducted to which reference has been made, that Ms Devi did not hold a valid and current Student Visa.

[104] It is thus uncontroversial that Ms Devi, at all material times, held and continues to hold a valid Student Visa. That Visa will not expire until 15 March 2019. The nature of the Visa held is conditional, the effect of which is that Ms Devi at all material times had a right to work in Australia up to 40 hours per fortnight. The Respondent formed a view as to the consequences of the additional hours it says Ms Devi worked, that is, that she thereby became an “illegal worker”. It therefore decided not to offer shifts to Ms Devi until such time as she satisfied the employer that she was not an illegal worker. It concluded that as a consequence of its view that Ms Devi had worked more hours than the hours provided for in the conditions attaching to the Visa that Ms Devi had “acted in breach of [her] student Visa conditions” 175 and of “terms and conditions of [her] employment”176 with the effect that Ms Devi’s “ongoing right to work under [her] current Visa is invalid until such time as [they] receive confirmation in writing from the Department . . . that [she] continue to have the right to work.”177 This line of reasoning or conclusion is plainly wrong. Assuming for one moment that the hours alleged to have been worked in excess of Visa conditions amounted to a breach, it does not follow that the breach invalidates the Visa. Such a view is plainly nonsense.

[105] The invalidation or revocation of a Visa has serious consequences for the Visa holder. Automatic invalidation by reason of alleged conduct without the need to establish that the conduct occurred and if it occurred, that the conduct was in breach of the condition, and without regard to the circumstances, would need to be a consequence for which clear and plain provision in the Migration Act is to be found. As is evident from the extracted provisions of the Migration Act concerning Visas, and in particular revocation, much more needs to occur before revocation occurs. There is no provision in the Migration Act which has the effect of automatically invalidating a Visa by reason of conduct much less an allegation of conduct. A Visa will be valid until it expires or is revoked. That is scheme of the Migration Act. At the time the Respondent decided not to roster Ms Devi for further shifts, Ms Devi’s Visa had neither expired nor had it been revoked. Moreover, the Respondent took no steps to verify its belief that Ms Devi’s Student Visa was invalid or that it was invalid until such time as the Department affirmed in writing its validity; nor did it take any step to verify its view that it would breach the Migration Act by allowing Ms Devi to work according to the contract of employment because she may have worked hours in excess of the Visa restriction at some earlier time.

[106] The Department’s guide dealing with “Legal workers – a guide for employers”, 178to which reference has earlier been made, establishes that VEVO is the Department’s preferred method for checking the Visa status or conditions of a non-citizen and clearly states:

“VEVO is a free online government service and is the preferred method of checking if non-citizens have work restrictions on their visa. VEVO checks can be used as evidence that reasonable steps have been taken by an employer to check that a non-citizen is allowed to work.

Employers can register as a VEVO Organisation and see the following information for non-citizens:

•  the type of visa the person holds

•  when the visa was granted and when it will expire

•  if the person has unlimited right to work, no work right or work restrictions. The employer must check VEVO themselves, or have received a VEVO email response.” 179

[107] The guide also details the process by which an employer may be confident that the person is a “legal worker” by requiring employees to do certain things. In this regard the guide states that:

“Employers can ask the non-citizen to send their current visa details directly from the department's VEVO email. A non-citizen can do this when they access VEVO as a visa holder, using one of the following reference types and their date of birth, passport number and country:

•  visa transaction reference number

•  visa grant number

•  visa evidence number

•  password.

We inform visa holders of the conditions associated with their visa, including any work limitations or if they have no work rights. If an Australian employer accepts a VEVO email from a visa holder and there are no work restrictions associated with their visa, the employer can be confident that person is a legal worker.” 180

[108] The VEVO check method also provides a foundation for the defence established by sections 245AC(2) and (6) of the Migration Act as is clear from the earlier extract of Regulation 5.19H.

[109] The Respondent did not undertake a check nor did it make a request for the Department to clarify whether the circumstances alleged by it amounted to a breach of a Visa condition, and if so, to seek advice from the Department as to the consequences of that breach on its capacity to continue to offer work to Ms Devi. Instead, it purported to instruct Ms Devi to obtain written confirmation from the Department as to whether she continued to have a right to work, and in doing so the Respondent required that she “self-report the occasion of the breach of the working conditions of [her] student Visa to the Department” 181 and provide evidence of same within 7 days.182The purported instruction given was plainly inconsistent with the preferred mechanism of establishing whether a Visa holder had a right to work. Moreover, in my view, was plainly unreasonable to require Ms Devi to self-report that she had worked in breach of a Visa condition in circumstances where she plainly disputed whether she had worked at all and plainly disputed that she had breached her Visa conditions. The effect of the instruction was to require Ms Devi to report to the Department that she had engaged in wrongdoing in circumstances where she disputed that fact. It was unreasonable also to require Ms Devi to report a breach in circumstances where it was plainly open to the Respondent to report to the Department its suspicions and to seek its advice. It was the Respondent after all which was asserting that there had been a breach. The notion that Ms Devi was in breach of her Visa conditions until she proved otherwise is fundamentally unfair.

[110] Having regard to the provisions of the Migration Act, and even assuming that Ms Devi worked additional hours as alleged by the Respondent on the occasions identified by the Respondent, it nevertheless seems plain to me that at all material times Ms Devi was a lawful non-citizen with a right to work up to 40 hours per fortnight. It was not unlawful for her to perform her duties under the contract within the parameters specified in her Visa conditions, and there was no legal impediment to or consequence for, the Respondent permitting Ms Devi to work the hours for which she and it had contracted.

[111] The issue that next arises is whether the Respondent had any legal basis for excluding Ms Devi from the workplace and not permitting her to work the hours for which it had contracted. As I have earlier indicated, this is in effect a suspension, what it is more is it was a suspension without pay.

[112] It is well-settled that an employer does not have a common law right to suspend an employee without pay. 183This will be so even if an employee has engaged in misconduct which would justify summary or immediate dismissal.184

[113] In my view, the Respondent’s refusal to permit Ms Devi from working her contracted hours without making payment to her during the period of that which was in effect a suspension, was a repudiation in that the Respondent’s conduct evinced an intention not to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the Respondent’s contractual obligations. A right to suspend without pay may exist if provision is made for such a right by the contract, by statute or by an industrial instrument such as an award or enterprise agreement. No such right exists in the employment contract the subject of this proceeding, nor is any such right to be found in any applicable industrial instrument. The Respondent was not able to point to any provision of the Migration Act which might be said to confer such a right in the circumstances of a suspected contravention of a Visa condition, nor was I able to identify any such conferral of right in the Migration Act or in any other relevant statute. Absent such a right it follows that the Respondent’s conduct in refusing to allow Ms Devi to work contracted hours combined with a refusal to make payment of wages for those hours without terminating the contract of employment amounted to a breach of the contract. The breach continued from 29 November 2017 until 7 February 2018. It was in every sense repudiatory conduct in relation to which Ms Devi had to make an election.

[114] Ms Devi’s evidence, which I accept, was that during December 2017 she made various written and oral representations to the Respondent about the allegations that she breached her Visa conditions. She accepted that she may have clocked off late on one or more occasions but did not do so deliberately and had no expectation of receiving and did not seek payment. 185 Ms Devi also made or attempted to make contact with the Department in order to meet the Respondent’s instruction about her Student Visa and her right to work.186

[115] On 2 February 2018, lawyers acting for Ms Devi wrote to the Respondent 187 outlining that Ms Devi had been suspended without pay since 16 November 2017, that Ms Devi remained ready and willing to work in accordance with the contract of employment and that she has a valid Visa allowing her to work in Australia.188 The letter explained, consistent with Ms Devi’s earlier advice to the Respondent, that Ms Devi had been advised by the Department that it does not provide written confirmation of a continuing right to work, and as such the instruction of the Respondent to Ms Devi to obtain such written confirmation as a condition of her return to work was unreasonable.189 The letter concludes with the following:

“Unless we receive written confirmation by Wednesday 7 February 2018 that our client’s contracted shifts will be reinstated and her wages back-paid for the full duration of her suspension without pay, she will be forced to conclude that the Employer has repudiated the contract of employment by refusing to allow her to perform her contracted duties and by failing to pay her wages, and that this amounts to a termination of her employment at the Employer’s initiative.” 190

[116] This was clear communication from Ms Devi that she would accept the repudiation on 7 February 2018 unless by that date the Respondent permitted her to resume work, amongst other things. By correspondence dated 7 February 2018, the Respondent maintained its assertion that Ms Devi had breached her Visa conditions and maintained that she was “currently an illegal worker for the purposes of any right to work”. 191It contended that it has not repudiated the contract of employment or otherwise acted unreasonably.192 The Respondent did not agree to allow the Applicant to resume work. I am satisfied that by words and conduct Ms Devi accepted the repudiation with the consequence that the employment came to an end on 7 February 2018.

[117] The Respondent contended that if Ms Devi’s employment is found to have ended by the Respondent's repudiation, she had accepted the repudiation months before she lodged her unfair dismissal remedy application on 27 February 2018. 193 It contended that the date as elected by Ms Devi’s legal representative was not the date of election, but rather election could only have taken place on 13 December 2017, 7 days after receipt of the letter from the Respondent dated 7 December 2017. This is said to be the case because that is the date by which Ms Devi was required to self-report the breach to the Department.

[118] The Respondent points to no communication from Ms Devi in which there is any indication that the Respondent’s repudiation of the contract is accepted by her. As should be evident from the matters earlier discussed, acceptance by the innocent party of a repudiation and communication thereof is essential. The failure by Ms Devi to self-report within the timeframe provided in the Respondent’s correspondence of 7 December 2017 is not evidence of an acceptance by Ms Devi of the Respondent’s repudiation of the contract of employment. The Respondent points to Ms Devi’s conduct (in particular the commencement of her job search activities) and to the parting words of her email on 14 December 2017 - “Now I will leave it for Fair Work Australia and the ANMF to represent me.” 194

[119] The statement in the email is at best equivocal and certainly is not indicative of an acceptance of the repudiation. Moreover, that Ms Devi was looking for other work is hardly surprising in circumstances where the Respondent refused to allow her to perform work in accordance with the contract of employment and was not paying wages. That she likely needed income and that she pursued means by which she might obtain some income is not evidence, without more, of a communication by conduct that she accepted the Respondent’s repudiation. The Respondent’s submissions to the contrary are therefore rejected.

[120] On this basis, I have concluded that the date on which the termination of employment took effect is 7 February 2018 and it is therefore unnecessary to consider whether to exercise my discretion to extend the time within which an unfair dismissal remedy may be lodged, as on the basis of my conclusion, the application was lodged within time.

[121] It is necessary to then briefly deal with the question whether on the basis of my conclusion, Ms Devi’s acceptance of the Respondent’s repudiation of the contract of employment, with the consequence that the employment relationship the contract governed was terminated, was a dismissal in the sense that Ms Devi’s employment with the Respondent was terminated on its initiative.

[122] It seems to me uncontroversial that once it is accepted that the Respondent repudiated Ms Devi’s contract of employment and which repudiation was accepted bringing the contract to an end, and the employment relationship thereunder came to an end on 7 February 2018, that the termination of the employment relationship (with which section 386 of the Act is concerned) may properly be said to be on the Respondent’s initiative. 195 That is, the action of the Respondent by repudiating the contract was the principal contributing factor which led to the termination of the employment relationship and that act resulted directly or consequentially in the termination of the employment. Put another way, but for the employer’s repudiation, Ms Devi would have remained in the employment relationship.196

[123] I am therefore satisfied that Ms Devi was dismissed within the meaning of s.386 of the Act.

[124] Before turning to consider whether the dismissal was harsh, unjust or unreasonable, I should briefly deal with some of the other bases upon which the Respondent asserted that the termination of the employment was not only its initiative.

[125] The Respondent contends that if Ms Devi’s employment has been brought to an end, it was her conduct in fundamentally breaching the contract of employment which was or were that which brought the contract to an end. In this regard, the Respondent submits that this was not on the initiative of the Respondent. 197

[126] The Respondent maintains that Ms Devi has breached the express terms of her contract of employment including:

•  The employee will not work in excess of 20 hours per week on a Part-time basis (clause 6.1);

•  The employee will work shifts in accordance with the roster (clause 6.4);

•  The employee will ensure that the total number of hours that they work with the Employer and any other Employer is not in breach of their visa restrictions (clause 7.1);

•  The employee will furnish within 48 hours any evidence required by the employer in Support of the Employee's current Australian Visa Status and/or immigration status (clause 7.3); and

•  The employee agrees to obey all reasonable and lawful directions and instructions (clause 15.1). 198

[127] These allegations of breach receive much elaboration in the Respondent’s submissions. 199Based on my earlier factual findings, I am not persuaded that there has been established any serious breach by Ms Devi of the contract of employment. Putting to one side the correctness of the allegations of breach, the submission that such breaches brought the contract of employment and the employment relationship to an end must be rejected for the simple reason that breaches of contract alone are generally incapable of bringing the employment relationship to an end. They may provide foundation for the Respondent to terminate the employment by reason of the breaches. They may also provide foundation for an argument that the breaches amounted to a repudiation by Ms Devi of the contract of employment which was capable of acceptance by the Respondent.

[128] But the Respondent did not, on its own case, terminate the employment of the Applicant by reason of the alleged breaches, nor did it on its own case, accept any repudiation thereby bringing the contract to an end. To the contrary, it maintained that the employment relationship was ongoing, even during the hearing and its closing submissions. 200 If there was repudiatory conduct on the part of Ms Devi than the Respondent’s insistence that the employment relationship is continuing is consistent with an election having been made that the contract remains on foot and is inconsistent with an acceptance of the repudiation. Moreover, the insistence that the employment relationship remains on foot gives rise to the very real consideration that if there were breaches of the contract of employment by Ms Devi which would justify termination of employment by reason of misconduct there has been a waiver.

[129] The Respondent also submitted that the contract was frustrated and thus there was no termination on the Respondent’s initiative. 201 This submission proceeds principally upon the foundation that it was frustrated because Ms Devi did not have a right to work in Australia. For the reasons earlier given, during all material times, Ms Devi had a right to work in Australia pursuant to a Student Visa and she remained ready and willing to perform work pursuant to the contract until the time she elected to accept the Respondent’s repudiation of it. The notion that the contract was frustrated is rejected. To the extent that the “frustration” submission relies upon Ms Devi’s failure to self-report and failure to obtain written clearance from the Department,202that is also rejected. The doctrine of Frustration is concerned with events which intervene to make further performance of a contract impossible or renders further performance radically different to that which was contemplated by the parties at the time the contract was made.203 The Respondent’s erroneous view as to the effect of the alleged breach of the Student Visa condition, did not have this result. I have already stated that the Respondent’s direction as to self-reporting was unreasonable given the nature of the direction. Neither the request to self-report nor the desire to receive Departmental written confirmation were terms of the contract, satisfaction of which conditioned the performance of work under the contract.

[130] The Respondent also points to clause 9.1 of the contract which it says makes provision for automatic termination of the contract upon the happening of certain events. Clause 9 provides:

9. Automatic Termination of Contract

9.1this contract will automatically terminate if there is any change to one or more of the following:

(i) Visa status

(ii)immigration status

(iii)Right to work in Australia

[131] As I have earlier noted, there is no evidence of any change to Ms Devi’s Visa status or immigration status. Moreover, as I have already determined for the reasons given earlier in my opinion, Ms Devi maintained at all material times a right to work in Australia pursuant to a valid and operative Student Visa. The employment relationship did not end by reason of any of the events set out in clause 9 of the contract. That the Respondent believed, reasonably or otherwise, that the alleged breach of the Visa condition removed the Applicant’s right to work in Australia is respectfully beside the point. The event or events in clause 9 either occurred or they did not. I have concluded that they did not. Consequently, clause 9 of the contract is not engaged. The Respondent’s argument based on clause 9 of the contract is rejected.

(ii)Whether Ms Devi was protected from Unfair Dismissal

[132] An order for reinstatement or compensation may only be made if I am satisfied Ms Devi was, at the date of the dismissal, protected from unfair dismissal under the Act.

[133] Section 382 of the Act sets out the circumstances that must exist for Ms Devi to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

  (i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[134] There is no dispute, and I am satisfied, that Ms Devi was, on 7 February 2018, protected from unfair dismissal within the meaning of s.382. It is uncontroversial that Ms Devi had, as at 7 February 2018, completed a period of employment with the Respondent of the least the minimum period of employment. It is uncontroversial that an applicable enterprise agreement applied to her employment at the time of the dismissal.

(iii)Was the dismissal unfair?

[135] Ms Devi’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

“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.”

[136] I have already concluded for the reasons stated earlier Ms Devi was dismissed on the Respondent’s initiative within the meaning of s.386 of the Act. The Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of Ms Devi was not a case of genuine redundancy within the meaning of s.389 of the Act.

(iv)Harsh, unjust or unreasonable

[137] It remains therefore, for me to consider whether Ms Devi’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

“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.”

[138] Having regard to the structure and content of s.387, in deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account.

[139] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 204 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision making process.205 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:206

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 207 

[140] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 208 

[141] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd  209 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.” 210 

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

(a)Valid reason – s.387(a)

[143] There must have been a valid reason for the dismissal relating to Ms Devi’s capacity or conduct, although it need not be the reason given or relied upon by the Respondent at the time of the dismissal. 211 The reason should be “sound, defensible or well-founded”212and should not be “capricious, fanciful, spiteful or prejudiced”.213

[144] In the circumstances of this case, the dismissal of Ms Devi occurred consequent upon the repudiation of the contract by the Respondent and its acceptance by Ms Devi. The repudiatory conduct and the reasons for engaging in it do not, for the reasons earlier discussed, provide a sound, defensible or well-founded reason. However, as I have indicated earlier, the question posed by the consideration in s.387(a) of the Act is not whether the employer had a valid reason for the dismissal, rather the issue that must be taken into account is whether there was a valid reason for the dismissal related to Ms Devi’s capacity or conduct. The reason for Ms Devi’s dismissal related to her conduct. There is no suggestion that the reason for dismissal related to Ms Devi’s capacity, which will usually be associated with unsatisfactory performance. 214

[145] Where conduct of Ms Devi is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged occurred. A mere suspicion of conduct does not amount to a valid reason. 215 The Respondent contends that there was a valid reason for Ms Devi’s dismissal because of her breach of the 40 hours per fortnight Visa restriction and her behaviour once that breach was raised, given:

•  Ms Devi had engaged in misconduct by working in breach of her Visa conditions;

•  Ms Devi had breached the terms of her contract of employment as described above;

•  the consequences for the Respondent of breaching the Migration Act 1958 (Cth) which were acknowledged by Ms Devi in her evidence;

•  the Staff Memorandum that was published on 11 April 2016 216, which mistakenly informed employees that their right to work “automatically terminates” overstated, rather than understated, the seriousness of these issues and the fact that they could result in an employee losing their job;

Ms Devi had recently been reminded of how serious this issue was and was on notice of the expectations of her in relation to complying with her Visa conditions. This was reiterated to Ms Devi at the meeting of 11 August 2017 with Sarah Hourigan. Ms Devi was previously advised of the seriousness of breaching her Visa conditions and was aware that a substantiated breach would result in disciplinary action up to and including her termination, on 24 August 2017;

•  Ms Devi was aware of how serious the issue was;

•  the lack of candour shown by Ms Devi during the investigation. Ms Devi made a number of dishonest statements in attempting to find an excuse in relation to her conduct which included waiting with a patient for an ambulance, when an ambulance had taken a resident 30 minutes prior to Ms Devi 's conclusion of her shift or she was chatting. Ms Devi confirmed that she was absolutely not working when the iCare notes of the Respondent clearly show otherwise. Ms Devi's failings in this regard were necessarily destructive of the trust necessary to underpin the employment relationship;

•  it was obvious to the Respondent that Ms Devi was dishonest about having had three self-reported conversations with the Department when they knew that was not practically possible when the help line had only been open for two minutes at the time she said she had made two calls to the Department and had only been open for 30 minutes in the time she said she had completed the third call prior to attending the Respondent's corporate office; and

•  Ms Devi was also advised of the allegations that she had breached her Visa conditions at the meeting of 29 November 2017. The allegations were clearly put to her and she was provided with an opportunity to respond.

[146] For the reasons earlier given, I am not persuaded that any of the conduct alleged by the Respondent to be conduct amounting to working in excess of the hours permitted by Ms Devi’s Student Visa have been made out in the sense that they constitute either a breach of a Visa condition or a breach of the contract of employment. The conduct did not justify her immediate removal from the roster on and from 26 November 2017 and certainly not without pay. Her failure to clock off on some of the occasions identified amounts, in my view, to no more than human error or neglect rather than being the product of some deliberate arrangement on his Devi’s part to work extra hours without the Respondent’s knowledge or consent and in breach of her Visa condition. To the extent that some of the conduct is said to be attributable to an arrangement between Mr Sharma and Ms Devi to work extra hours and to wind back the record of the hours worked, I am not persuaded that this conduct has been established on the evidence and in any event it was known to the Respondent well before 7 February 2018 and certainly well before it filed its materials in opposition to this application. Moreover, the seriousness with which Ms Devi’s conduct vis-a-vis Mr Sharma is to be viewed must be assessed by reference to the fact that Mr Sharma was Ms Devi’s superior and effectively a representative of the Respondent. Thus, even if the conduct as alleged occurred given the relationship, it is conduct for which the Respondent bears some responsibility. It does not in my view provide a sound, defensible or well-founded reason for dismissal.

[147] In addition, I am not persuaded that any of the new allegations raised by the Respondent constitute or support a conclusion that there was a valid reason for Ms Devi’s dismissal. Such of the allegations as concern the periods 6 to 19 February 2017 and 20 February to 5 March 2017 had already been considered by the Respondent in its investigation during August 2017, wherein the Respondent concluded that Ms Devi had not engaged in any breach. It is in my view unreasonable for the Respondent to now rely upon those same events to make good an argument that there was a valid reason for Ms Devi’s dismissal. Such reliance may be quintessentially described as capricious. As to the periods of 7 August to 20 August 2017, 21 August to 3 September 2017 and 16 to 29 October 2017, as earlier noted, Ms Devi denies any wrongdoing and as I have already concluded the allegations based on these periods have not been made out. They do not therefore provide a valid reason for Ms Devi’s dismissal.

[148] As to the allegation of a lack of candour on the part of Ms Devi, it is to be remembered that Ms Devi provided her responses based on her recollection. The Respondent alleges that her responses were inconsistent with, for example the iCare notes, but it did not provide Ms Devi with the IQ notes during the discussions. Moreover, as to the ambulance waiting issue, the Respondent seeks to refute that explanation, which in fairness to the Applicant was put as an explanation no more highly than that is what she “might” have been doing and was based on documents which as noted earlier in this decision are not relevant to the facility at which Ms Devi worked. As to her conduct vis-a-vis the Department, I have already observed earlier that the direction by the Respondent that she self-report a breach to the Department and that she obtain written confirmation from the Department that she is not in breach of her Visa conditions, was in the circumstances unreasonable. The Respondent could have taken steps itself to obtain the necessary confirmation after Ms Devi advised it that the Department had told her that written confirmation would not been given. It is to be noted that despite the Respondent advising Ms Devi on 7 December 2017 that the Respondent “as an employer is obliged to report this to the” Department 217 it took no step until 8 February 2018, the day after Ms Devi accepted the Respondent’s repudiation. I am not persuaded that the evidence establishes that there was a lack of candour, much less that there was dishonesty on the part of Ms Devi. It follows that this does not provide a valid reason for the dismissal. Nor am I persuaded that Ms Devi’s inability to comply with the Respondent’s unreasonable direction as to communication with the Department provides a valid reason.

[149] Consequently, I am not satisfied that there was a valid reason for Ms Devi’s dismissal. The absence of a valid reason weighs in favour of a conclusion that the dismissal was unfair.

(b)Notification of the valid reason – s.387(b)

[150] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 218  in explicit terms,219 and in plain and clear terms.220 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),221a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 222   

[151] The Respondent contended that Ms Devi was notified in the letter of 21 November 2017 that if the allegations against her were substantiated her employment may be terminated. Ms Devi was also sent a further letter on 7 December 2017, advising her that on the balance of probabilities the Respondent had found that Ms Devi had worked in breach of her Visa conditions. The letter requested that Ms Devi self-report the breach and provide confirmation to the Respondent that she has reported the breach and continues to have a valid right to work. The letter advised that Ms Devi had three months to provide confirmation that she continued to have a valid right to work despite her reported breach. The Respondent contended that Ms Devi was clearly on notice that her employment may be terminated.

[152] As I have already concluded, there was no valid reason for the dismissal and as such the question whether there was notification of the valid reason prior to dismissal does not arise. In addition, the Respondent continues to assert that Ms Devi has not been dismissed and that her position remains open. True it is that Ms Devi was notified of some of the allegations which are now said to be reasons for her dismissal, however the preponderance of the instances of alleged Visa condition breaches said to constitute a valid reason were given to Ms Devi on or after 10 May 2018, when the Respondent filed its material concerning the merits of her unfair dismissal remedy application.

[153] Given my conclusion as to the absence of a valid reason it seems to me in the circumstances of this case that the notification consideration weighs neutrally.

(c)Opportunity to respond – s.387(c)

[154] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee.

[155] The Respondent contended that if it is found that it dismissed Ms Devi from her employment on the basis of the 2 November 2017 incident, the decision to terminate Ms Devi's employment flowed from a comprehensive and fair inquiry process. Ms Devi was given a number of opportunities to respond to the allegations. She was squarely on notice that the Respondent took the matters raised seriously. It contended that on 29 November 2017, at the meeting between Ms Devi and Ms Sarah Hourigan, Ms Devi asserted that she had not been working but had either stayed back chatting or had waited with a resident who was waiting for an ambulance. It contended that Ms Devi's assertions were not substantiated, she had evidently been undertaking work duties and in fact the resident in room 15 at the Respondent's facility had been transferred via ambulance prior to Ms Devi's rostered end time, and in any event the resident was not a resident in which Ms Devi was allocated to look after on 2 November 2017.

[156] The Respondent contended that whilst the further allegations were unable to be put to Ms Devi, this difficulty arose in circumstances where Ms Devi had already lodged her application by the time the allegations came to light and she was asserting that she had already been dismissed from her employment.

[157] There was no valid reason for dismissal related to Ms Devi’s capacity or conduct and thus no opportunity to respond to any valid reason for the dismissal.

[158] To the extent that it is suggested that Ms Devi was subject to a fair procedure process leading to her dismissal and to the extent that such a contention is made good by the staff memorandum, to which previous reference has been made, to a previous discussion with Ms Hourigan on 11 August 2017, and the letters to Ms Devi in respect of the August and December 2017 inquiries, such suggestion must be rejected. The staff memorandum and letters contained plainly misleading and wrong information about the consequences of the conduct alleged vis-a-vis the Migration Act and the Regulations.

[159] That this was the Respondent’s view appears to have influenced the procedures adopted by the Respondent in relation to the alleged breaches that were investigated, particularly in so far as the Respondent considered that Ms Devi’s right to work was “invalid”. The Respondent’s conduct which followed proceeded upon this erroneous view. On no view could this conduct be regarded as fair or providing an employee an opportunity to respond, since the allegation of breach resulting in invalidity of the Student Visa, to which Ms Devi was in effect asked to respond, was itself erroneous. Moreover, the manner in which Ms Devi was required to establish her right to work, was unreasonable.

[160] Ms Devi was given a limited opportunity to respond to the allegations regarding 6 to 19 February and 20 February to 5 March 2017 (in August 2017) but no opportunity to consider the new allegations concerning these pay periods, and a limited opportunity to respond to the allegations regarding 30 October to 12 November 2017 (on 29 November 2017). She was not provided with the iCare notes or ambulance notes from 2 November 2017 to assist her recollection during that meeting. The ambulance notes produced at the hearing do not appear to be relevant.

[161] The remaining allegations for the periods 7 to 20 August, 21 August to 3 September and 16 to 29 October 2017 have never been put to Ms Devi prior to the dismissal.

[162] Section 387(c) is concerned with whether Ms Devi was given an opportunity to respond to “any reason” related to her capacity or conduct. For the reasons stated above, I am satisfied as to the allegations related to her conduct, although they do not found a valid reason, that Ms Devi was given some opportunity to respond to some of the allegations but not all of them or even the majority of them. In these circumstances, this consideration weighs in favour of a conclusion that the dismissal was unfair.

(d)Unreasonable refusal by the employer to allow a support person – s.387(d)

[163] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 223It may well be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[164] There is no dispute that the Respondent allowed Ms Devi the opportunity to have a support person present during the meeting of 29 November 2017. That this occurred weighs in favour of the Respondent but in the context of an absence of a valid reason for Ms Devi’s dismissal the weight attributed to this consideration is low.

(e)Warnings regarding unsatisfactory performance – s.387(e)

[165] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 224 It is not contended that Ms Devi dismissal related to unsatisfactory performance. In the circumstances this consideration weighs neutrally.

(f)Impact of the size of the Respondent on the procedure followed – s.387(f)

[166] The Respondent operates a business which is not insignificant in size. Although it does not have boundless resources it does have sufficient resources to enable it to properly understand its rights and obligations in connection with employment of staff on Student Visas. This is particularly the case when the organisation employs a not insignificant number of persons on student Visas. 225Moreover, given its size, resources and its utilisation of employees on Student Visas, it is not unreasonable to expect the Respondent to have in place mechanisms to ensure that appropriate dialogue may occur with the Department in relation to concerns about Visa condition compliance. I agree with Ms Devi’s submission which was to the effect that the Respondent could, if it reasonably believed that Ms Devi had breached her Visa conditions, have contacted the Department and made a report in a timely and accurate fashion. This it did not do. This is all the more surprising in circumstances where the Respondent alleged that it believed that it was at risk of the imposition of penalties or worse if you continue to roster Ms Devi to work. Such concern demanded immediate and timely resolution. This is not what had occurred. Although its size is such, it did not contribute to the procedure adopted in the sense that one might consider could occur in the case of a small business with limited resources. The Respondent size and its reliance on Student Visa employees should have lead the Respondent to adopt a procedure which would address the very issues about which it was concerned in a fair and timely fashion. This did not occur in this case. In these circumstances, I consider that this consideration weighs in favour of a conclusion that the dismissal of Ms Devi was unfair.

(g)Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[167] The Respondent has on staff a number of human resources professionals to provide human resources services and advice. The involvement of the dedicated human resources personnel engaged by the Respondent did not facilitate a fair or efficient procedure in dealing with the concerns about Ms Devi’s pattern of work. To the contrary the Respondent, in part through its human resources personnel, formed an erroneous view and acted in breach of the contract of employment based on that view. Here there was no absence of dedicated human resources management specialists, instead despite the Respondent having access to dedicated human resources personnel and utilising that resource, the procedure adopted was on any view unfair. However, as this consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact, this consideration weighs neutrally in the circumstances of this case.

(h)Other relevant matters – s.387(h)

[168] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant.

[169] The Respondent contended that I should take into account the fact that the Respondent maintains that there are grave risks to it and its accreditation if it is found to contravene the Migration Act. For the reasons given earlier in this decision, I consider that there is no or minimal risk of it being found to have contravened the Migration Act vis-a-vis Ms Devi. Moreover, I am not persuaded there is any sufficient material about the nature and circumstances of accreditation for this matter to be taken into account. Consequently, I reject that submission.

[170] The Respondent also contended that I should take into account, given the Applicant’s conduct in failing to work in accordance with her roster, that this would lead to an expectation that if Respondent permitted Ms Devi to continue to work her behaviour would continue and the risks associated would also continue. First, as I have already concluded, I am not persuaded that Ms Devi engaged in conduct in breach of a Visa condition. Secondly, it is plainly open to the Respondent to take the necessary steps to ensure that Ms Devi and any of its other employees who are working with Visa working hours restrictions, and for that matter any other employee, work in accordance with the roster. I am therefore not persuaded that this is a relevant consideration.

[171] I consider the following matters to be relevant and have also taken these into account:

•  First, the Respondent’s unreasonable direction that Ms Devi self-report and obtain written confirmation that she was not in breach of a Visa condition from the Department. The Respondent could and should have taken steps to ascertain this information for itself particularly given Ms Devi’s denial of any breach and her advice to the Respondent that the Department would not provide her with written confirmation that she was not in breach of a Visa condition;

•  Secondly, Ms Devi’s otherwise good employment record;

•  Thirdly, despite on 7 December 2017 the Respondent advising that it was under a duty to report Ms Devi’s breach of a Visa condition to the Department, it took no step to do so until after Ms Devi accepted the repudiation; and

•  Fourthly, based on its erroneous view as to the effect of the suspected breach of Ms Devi upon her Visa status, suspending Ms Devi without pay.

[172] Each of these matters identified above are relevant and weigh in favour of a conclusion that the dismissal of Ms Devi was unfair.

[173] Taking all of these matters into account, the considerations in s.387 (a), (c), (f) and (h) weigh in favour of a conclusion that the dismissal was unfair. The considerations in s.387 (b), (e) and (g) weigh neutrally while only (d) weighs the other way. I therefore consider for the reasons given in this decision, the Applicant’s dismissal was harsh, unjust and unreasonable. It is unjust because the conduct alleged was not shown to have occurred or have the consequence alleged and so was not misconduct. That the Respondent acted on an erroneous view as to the consequence of the conduct alleged, issued an unreasonable direction and suspended without pay contrary to any right it had under the contract, any relevant industrial instrument or statute, resulting in a repudiation, the acceptance of which brought the employment to an end, renders the dismissal unreasonable. Lastly, it is harsh because the Respondent’s repudiation as a response to the conduct in which Ms Devi was said to have engaged, and consequently the circumstances in which the employment was brought to an end, was disproportionate to the alleged conduct.

Conclusion

[174] For the reasons given, Ms Devi was unfairly dismissed by the Respondent.

[175] I now need to consider the remedy, if any, that should be ordered in the circumstances. The parties are requested to confer on the directions that should be made to progress the application to hearing in order that the question of remedy, if any, can be determined. The parties are to file in my Chambers by 5.00pm on Friday, 16 November 2018, a document setting out consent directions, or in the absence of consent, a document or documents setting out the respective positions of the parties in relation to directions that should be made. I will thereafter fix a further hearing date. The parties are also encouraged to confer on the question of remedy and to explore the possibility of reaching a consensus without the need for a further hearing. A member assisted conciliation conference can be arranged to assist the parties if the parties wish to participate in such a conference.

DEPUTY PRESIDENT

Appearances:

Ms K Burgess, Counsel for the Applicant.

Ms S Fitzgerald, Counsel for the Respondent.

Hearing details:

2018.

Melbourne:

June 25, 26 and 29 and August 21.

Final written submissions:

Applicant, 26 July 2018.

Respondent, 26 July 2018.

Printed by authority of the Commonwealth Government Printer

<PR608971>

 1   Exhibit 1 at [3] and [4]

 2   Respondent’s Outline of Submissions dated 9 April 2018 at [4]

 3   Ibid at [4(a)]

 4   Ibid at [4(b)] and [4(b)(i)]

 5   Exhibit 1 at [1]

 6   Exhibit 11 at [25]

 7   Exhibit 1 at Attachment PD-1

 8   See: https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions/visa-conditions-students

 9   Exhibit 11 at Attachment SR3

 10   Exhibit 7 at [24]

 11   Ibid at Attachment SH-7

 12   Ibid

 13   Ibid

 14   Ibid at [28]

 15   Transcript dated 25 June 2018 at PN205

 16   Ibid at PN207 – PN208

 17   Exhibit 7 at Attachment SH-9

 18   Respondent’s Outline of Submissions dated 9 April 2018 at [14]

 19   Ibid

 20   Exhibit 7 at Attachment SH-11

 21   Applicant’s Outline of Argument dated 30 April 2018 at [15]

 22   Exhibit 2 at [38]; Attachment PD - 16

 23   Exhibit 1 at [18]

 24   Ibid

 25   Transcript at PN2648-PN2649

 26   Exhibit 7 at [40]

 27   Ibid at [41]

 28   Ibid

 29   Exhibit 11 at [43]

 30   Ibid

 31   Ibid

 32   Ibid at [44]; See also Exhibit 7 at [42]

 33   Exhibit 7 at [43]

 34   Exhibit 11 at Attachment SR8

 35   Exhibit 15

 36   Exhibit 14

 37   Exhibit 15

 38   Transcript dated 29 June 2018 at PN2541

 39   Exhibit 1 at [1]

 40   Exhibit 14

 41   Exhibit 12 at p.77

 42   Exhibit 11 at [46]

 43   Transcript dated 29 June 2018 at PN2625

 44   Transcript dated 25 June 2018 at PN367 – PN372

 45   Ibid at PN505

 46   Ibid at PN357

 47   Ibid at PN359

 48   Ibid at PN458

 49   Ibid at PN459

 50   Exhibit 1 at [19]

 51   Ibid

 52   Exhibit 6 at [24]-[25]

 53   Ibid

 54   Ibid; See also Attachment AF1

 55   Transcript dated 25 June 2018 at PN258 – PN264

 56   Exhibit 7 at Attachment SH-14

 57   Ibid at [52]; Attachment SH–18,

 58   Exhibit 1 at [21]

 59   Ibid

 60   Ibid

 61   Ibid at [22(a)]; Exhibit 7 at Attachment SH-16

 62   Exhibit 3 at [6]

 63   Exhibit 1 at [22(c)]

 64   Some of which is set out at [20] of the Respondent’s closing submissions dated 26 July 2018 and in the Applicant's closing submissions dated 26 July 2018 at [33] – [35] which need not be repeated here

 65   Exhibit 1; Attachment PD – 4

 66   Exhibit 11 at [55]

 67   Exhibit 1 at [22(d)]

 68   Exhibit 6 at Attachment AF5

 69   Exhibit 1 at [22]

 70   Ibid at Attachment PD-3

 71   Ibid at Attachment PD-4

 72   Ibid at [25]

 73   Exhibit 12 at [29] – [32]

 74   Ibid at [32] – [34]

 75   Ibid at [36]

 76   Ibid at [35]

 77   Applicant's closing submissions dated 26 July 2018 at [4] – [9]

 78   Exhibit 12; Attachment SR-19 Disciplinary Inquiry Report regarding Sanjeet Sharma dated 9 January 2018, p. 6. Allegation 3 alleges as against Mr Sharma: “It is alleged that in your position as Facility manager … you have used the EMPlive system to repeatedly adjust the actual hours worked by Ms Preeti Devi and in doing so have acted wilfully to reduce the recorded hours worked to avoid breaching Ms … Devi’s 40 hour visa restrictions, underpay Ms … Devi for actual hours worked, and failed to effectively performance manage Ms Devi in relation to her visa restrictions so as to avoid any reoccurrence.”

 79   Transcript at PN3153 – 3155

 80   Ibid at PN3162

 81   Ibid at PN938-943

 82   Exhibit 12; Attachment SR-19 Disciplinary Inquiry Report pp. 11 to 13 containing interview notes as to allegation 3

 83   Ibid at p.12

 84   Ibid; and also at p.13

 85   Ibid at Attachment SR-19

 86   Ibid at [46]

 87   Ibid at Attachment SR – 20

 88   Ibid at [45];

 89   Transcript at PN952

 90   Ibid at PN962

 91   Ibid at PN965

 92   See Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, 377-78 and Concut Pty Ltd v Worrell (2000) 75 ALJR 312

 93   Respondent's closing submissions dated 26 July 2018 at [23]

 94   See Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [240] and the authorities referred to therein

 95   Transcript at PN3215 and PN3232

 96   Exhibit 7; Attachment SH-8

 97   See https://www.homeaffairs.gov.au/Trav/Stud/More/Work-conditions-for-Student-visa-holders

 98   Exhibit 7; Attachment SH- 8

 99   Transcript at PN3235 – PN3239

 100   Exhibit 2 at [9]

 101   Exhibit 5 at [17]

 102   Transcript at PN676

 103   Ibid at PN669 – PN670

 104   Ibid at PN671

 105   Exhibit 13, allocation sheet dated 8 August 2017

 106   Transcript at PN3262

 107   See Exhibit 13

 108   Transcript at PN3323 – PN3325

 109   Ibid at PN3288

 110   Exhibit 2 at [11]

 111   Exhibit 5 at [21]

 112   Transcript at PN501 – PN503

 113   Ibid at PN736

 114   Ibid at PN737

 115   Exhibit 2 at [22]

 116   Transcript at PN3536

 117   Exhibit 2 at [24]

 118   Ibid at [23]

 119   Transcript at PN3339

 120   Exhibit 2 at [25]

 121   Transcript at PN3571

 122   Exhibit 2 at [26] – [27]

 123   Transcript at PN2075

 124   Ibid at PN1921, PN1933 and PN2067

 125   Ibid at PN449-PN452

 126   Ibid

 127   Exhibit 7; Attachment SH-14 and Exhibit 11; Attachment SR-10

 128   Transcript at PN3703

 129   Ibid

 130   Exhibit 7; Attachment SH-4

 131   Ibid

 132   Ibid at clause 4

 133   Ibid at clause 2

 134   Ibid at clause 6.1

 135   Ibid at clause 6.2

 136   Ibid at clause 6.3

 137   Ibid at clause 7.1

 138   Ibid at clause 7.2

 139   Ibid at clause 7.3

 140   Ibid at clause 9

 141   Ibid at clause 15.1

 142   Ibid at clauses 16.5 and 16.6

 143   Doutta Galla Aged Services Ltd, ANMF and HSU Enterprise Agreement 2014

 144   Exhibit 7; Attachment SH-14 and Exhibit 11; Attachment SR-10

 145   Respondent's outline of submissions dated 9 April 2018 at [60]

 146   Exhibit 11 at [19] – [20]; Attachment SR-1

 147   Exhibit 11; Attachment SR-1

 148   Exhibit 1; Attachment PD-4

 149   Exhibit 8

 150   Ibid

 151   The power in section 116 is not the only power to cancel a Visa. There are other provisions of the Migration Act which empower the Minister to cancel but in particular circumstances. The section 116 power is not limited, or otherwise affect these other powers, and the converse is also true; See s.118

 152   Applicant’s outline of closing submissions dated 26 July 2018 at [55]-[58]

 153   See Explanatory Statement, Select Legislative Instrument 2013 No 33, Migration Act 1958, Migration Legislation Amendment Regulation 2013 (No 1), Schedule 3

 154   Respondent’s outline of submissions dated 9 April 18 at [27] and [41]

 155   English and Australian Copper Co Ltd v Johnston (1911) 13 CLR 490 at 497

 156   Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102 at [70]

 157   [2017] FCAFC 102

 158   Ibid at [70]

 159   Ibid

 160   Ibid at [71]

 161   See Automatic Fire Sprinklers Pty Limited v Watson (1946) 72 CLR 435 at 437; Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 427; Visscher v Giudice (2009) 239 CLR 361 at 380 at [55]

 162   Visscher v Giudice (2009) 239 CLR 361 at 379 – 380 at [53]

 163   [2012] VSC 94; (2012) 264 FLR 1

 164   Ibid at [433]

 165   See Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 642, 655 – 656; Mercier Rouse Pty Ltd v Burness [2015] VSCA 8 at [2] to [5]

 166   See Gunton v Richmond upon Thames London Borough Council [1981] Ch 448 at 467 – 468

 167   (1974) 131 CLR 634

 168   Ibid at 646

 169   Exhibit 8 – answers to “How often employers should check visa details” in “Legal workers- a guide for employers"

 170   Exhibit 7 at [10]

 171   Respondent’s outline of submissions dated 9 April 2018 at [56]

 172   Transcript at PN1071-PN1073

 173   Exhibit 1; Attachment PD-2

 174   Exhibit 12 at [49]

 175   Exhibit 7; Attachment SH – 14

 176   Ibid

 177   Ibid

 178   Exhibit 8

 179   Ibid at ‘Visa Entitlement Verification Online (VEVO)

 180   Ibid at ‘VEVO email’

 181   Exhibit 7; Attachment SH – 14

 182   Ibid

 183   See for example Re Building Workers Industrial Union of Australia (1979) 41 FLR 192 at 194: Gregory v Philip Morris Ltd (1987) 77 ALR 79 at 100 (also on appeal at (1988) 80 ALR 455; APESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471 at 480

 184   See for example Hanley v Pease and Partners Ltd [1915] 1 KB 698; Scharmann v Apia Club Ltd (1983) 6 IR 157 at 165

 185   Exhibit 1 at [22]

 186   Ibid at [21]

 187   Ibid; Attachment PD-3

 188   Ibid at p.1 – 2

 189   Ibid at p.2

 190   Ibid

 191   Ibid; Attachment PD – 4

 192   Ibid

 193   Respondent’s closing submissions dated 26 July 2018 at [27]

 194   Exhibit 6; Attachment AF -5

 195   See Visscher v Giudice (2009) 239 CLR 361 at [81]

 196   See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205

 197   Respondent’s closing submissions dated 26 July 2018 at [14]

 198   Ibid at [15]

 199   Ibid at [16] – [23]

 200   Ibid at [8] – [14]

 201   Respondent’s outline of submissions dated 9 April 2018 at [50]-[66]

 202   Ibid at [56], [62]-[65]

 203   See for example Simmons Limited v Hay (1964) 81 WN (Pt 1) NSW 358 at 360

 204   [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 205   See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 206   (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 207   (1987) 16 FCR 167 at 184

 208   [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

 209   (1995) 185 CLR 410

 210   Ibid at 465

 211   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378

 212   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 213   Ibid

 214   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 215   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 216   Exhibit 11; Attachment SR-1

 217   Exhibit 6; Attachment SH – 14

 218   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 219   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151

 220   Previsic v Australian Quarantine Inspection Services Print Q3730

 221   (2000) 98 IR 137

 222   Ibid at 151

 223   See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].

 224   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 225   Transcript at PN24