DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Simon
v
NGS Group Pty Ltd ATF NGS Discretionary Unit Trust
(U2019/350)

Application for an unfair dismissal remedy.

[1] This decision concerns the circumstances under which John Simon’s employment with NGS Group Pty Ltd ATF NGS Discretionary Unit Trust (NGS Group) ended, and in particular, whether he was dismissed and if so, whether that dismissal was unfair within the meaning of the Fair Work Act 2009 (the Act). On 10 January 2019 Mr Simon lodged an application for unfair dismissal remedy in relation to his asserted dismissal.

[2] The Respondent, referred to in this decision as the NGS Group undertakes a signage business from premises in Heidelberg, Victoria. With only 12 employees at 21 December 2018, 1 it is a small business employer as that term is defined by the Act.

[3] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. The evidence before the Commission allows findings in relation to three of the elements; namely that, Mr Simon’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that, if there was a dismissal, he was otherwise a person protected from unfair dismissal; and that no question arises as to whether his termination of employment was a genuine redundancy.

[4] The matter of consistency with the Small Business Fair Dismissal Code requires consideration in the event that a dismissal is found by me.

[5] Witness evidence was received from Mr Simon on his own behalf and Mr Rohan Welsh, Director, NGS Group and Mr Allan Hineman, General Manager, NGS Group for the Respondent.

[6] Mr Geoff Lake of Counsel, instructed by Talitha Curcio of McDonald Murholme appeared on behalf of the Applicant while Ms Julie Zhou of Counsel, instructed by David Marks of Henty’s Lawyers appeared for NGS Group. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[7] For the reasons set out below, I have found that Mr Simon was dismissed within the meaning of the Act, and that his dismissal was not consistent with the Small Business Dismissal Code. After further consideration, I have found that his dismissal was otherwise unfair, taking in to account the criteria within s.387 of the Act, and that an amount of compensation is to be awarded to Mr Simon as the appropriate remedy.

CONSIDERATION

[8] The background to Mr Simon’s situation includes that during 2018 there were three significant things which eventually culminated in the loss of his employment; a potential change in his role with NGS Group; a claim by him that he had been subjected to workplace bullying, and contentions by NGS Group that his performance had been found wanting and warranted the issue of a warning about the consequences of a continuation.

Was Mr Simon “dismissed”?

[9] The first question to be determined in this matter is whether Mr Simon has been dismissed within the meaning of the Act. An objection made by the NGS Group at the time of filing its Employer Response Form responding to Mr Simon’s application denies that it has dismissed Mr Simon.

[10] A person is dismissed for the purposes of the Act’s unfair dismissal provisions in the circumstances set out on s.386. Relevant to determination of this matter are the provisions in s.386(1), which go to the questions of whether there was a termination at the employer’s initiative, or whether a resignation on the part of the Applicant was forced because of conduct or a course of conduct engaged in by his employer. Subsections 386(2) and (3) do not require consideration in this matter. Section 386(1) is in the following terms:

“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.”

[11] For the reasons set out below, I find that Mr Simon has been dismissed within the meaning of the Act. He is otherwise a person protected from unfair dismissal, having completed a period of employment of at least the minimum employment period and being the case that his employment is either covered by a modern award or his annual rate of earnings is less than the high income threshold.

[12] The overall circumstances of this matter lead to a determination that Mr Simon has been dismissed within the meaning of the Act because of the repudiatory conduct of the NGS Group, accepted by Mr Simon in December 2018. The pathway by which this finding is made consists of several elements detailed below.

Relevant background

The potential changed role

[13] Mr Simon had a substantial career working for NGS Group, 18 years in all, having started with the company in September 2000 as an apprentice. His employment ended with NGS in December 2018.

[14] During his employment, Mr Simon worked first as an apprentice in signage between September 2000 and September 2004. At the conclusion of his apprenticeship he was offered a permanent full-time position as a tradesperson signage installer. 2 In 2012, he became the company’s Production Manager. Having performed the Production Manager duties for around three years, in February 2015 Mr Simon was promoted into the position of Sales/Key Account Manager (referred to in this decision as the Account Manager position).3

[15] As Account Manager, Mr Simon’s salary from 25 January 2018 was $90,363 with him also being entitled to other employment benefits including the provision of a motor vehicle and mobile telephone. 4 Superannuation contributions were made in addition to the cash component, calculated at the rate of 9.5% of his base salary.5 Mr Rohan Welsh, an owner and Director of the NGS Group had agreed in or around 2015 that Mr Simon could work flexible hours by leaving early on Monday and Tuesday in order to pick up his daughter up from school on those days.6 Mr Welsh is critical of Mr Simon in relation to the flexible working arrangements saying that Mr Simon did not hold up his part of the bargain by working back late or working from home as had been promised by Mr Simon.7

[16] There is some evidence that in the period prior to May 2018 that Mr Simon had been experiencing some difficulties in performing his work. In addition, his direct manager Mr Hineman, the company’s General Manager had expressed his displeasure with the performance of a number of people in a meeting held either in December 2017 or January/March 2018. 8 Mr Simon’s evidence is that the meeting involved a number of people, including himself, Mr Hineman and Matthew Short, the Production Manager as well as Kate Welsh and Mia Russell, both Sales Managers, with his recollection being that Mr Hineman “yelled” words to the effect that “everyone's performance is shit and if you don't like it you can fuck off somewhere else”.9 Mr Hineman agrees he probably did say something along these lines however, “I was unhappy with the results, but I made the comment as a general comment to those present in the meeting. It wouldn't have been directed at Johnny individually”.10

[17] On 16 May 2018, Mr Simon sent a text message to Mr Hineman asking if there might be a position for him if he stepped away from his Account Manger Role. Mr Simon’s evidence is that this was merely an enquiry on his part to determine whether such was an option. 11 The text itself and Mr Hineman’s response are as follows:

•  From Mr Simon:

“Al

If I decided to step away from sales, would there be a position for me at NGS still, and what might it be?”

•  Mr Hineman’s response:

“Hi Johnny

I'm sure there would be depending on how your feeling. I think it's up to you and being honest with where your at physically and emotionally then we can work together on a role.” 12

[18] During June 2018, Mr Simon made a workplace bullying complaint to Mr Welsh about the conduct of Mr Hineman and another person, Gary Nelson, the Production Manager. 13 The circumstances of that complaint are discussed elsewhere in this decision, however it is to be noted that the complaint was not resolved, at least to the satisfaction of Mr Simon.

[19] Mr Simon was programmed to proceed on annual leave in early August and prior to that time, likely in late July 2018, there were discussions between Mr Simon and Mr Hineman about the change of his employment to that of a tradesperson sign writer. The discussion at the end of July appears to have focused on two matters; firstly, a “car swap” relating to the intention that there be a different vehicle provided to Mr Simon and secondly, the salary that would henceforth be paid to Mr Simon. Mr Hineman says that they “agreed he would start on the role on 9 August 2018”. 14 The two are also relatively agreed in their written evidence that in relation to the matter of the future payment of Mr Simon that what Mr Hineman put forward was two elements; first that they would discuss the salary for the position when Mr Simon returned from leave, and secondly that the company’s intention was that “he would receive a similar salary to Matt Short, the production manager”.15 This was originally confirmed in Mr Hineman’s oral testimony in a somewhat circuitous manner – the understanding was that Mr Simon “would be no worse off than what he was as an account manager”, 16 but that this meant he would receive a different hourly rate and that he would need to work overtime to make up the difference in total pay:

“There would be a - you're performing a different role, right, so we had to take into account that there would be overtime incorporated into that salary, or into that wage structure. So given the fact that our guys are working seven to - could be 12/15 hours extra of overtime a week, we needed to incorporate some of that into Johnny's wage. At that point in time, I went back and worked out if he was on Matt's salary of $36, how many hours would he need to work to actually be no worse off.” 17

[20] In his oral evidence Mr Hineman said he had told Mr Simon what Mr Short was paid on two separate occasions – before and after Mr Simon had been on leave, with him confirming this in cross-examination by Mr Simon’s Counsel, Mr Lake:

“Thanks. In terms of saying - you've said a few times, it's in your witness statement, that he would receive a similar salary to Matt Short, the production manager. At no time did you ever share with Johnny what Matt Short was paid, did you?---No, that's not correct. I did.

You told Johnny how much Matt Short was paid?---Yes.

When did you tell him that?---We discussed it when he'd returned.

Okay, so upon his return. Was that part of the conversation on 13 August at the point where he became aware of the $36 per hour rate?---Yes, that's correct. That was part of the conversation.

So let's return to that. So that happened on 13 August. I just want to confirm this is right. Up until John going on leave at the beginning of August, you had never had a conversation with him about how much Matt Short was paid?---No. We had had a conversation that he wouldn't be paid more than Matt.

Yes?---Matt was on $36 an hour and Johnny wouldn't be any worse off. That's the conversation that we had.

But you didn't ever talk about what Matt Short's annual payment was?---No, we spoke about what his annual pay was, but I said to Johnny that we would finalise the package when he got back and he would be no worse off. So he understood that Matt was on $36 an hour.

Prior to going on leave?---Absolutely.” 18

[21] Mr Hineman was specific in answers to later questions that he told Mr Simon on two occasions that “Matt's on $36 an hour as a production manager” and that the conversations were within a two week period before Mr Simon’s leave and on 13 August 2018. 19

[22] Neither Mr Hineman’s nor Mr Simon’s written statements reference the first of these discussions and Counsel for NGS Group, Ms Zhou, did not put the proposition to Mr Simon that he had been told these things by Mr Hineman before going on leave. The written evidence of Mr Hineman and Mr Simon was that the $36 per hour salary was discussed in the meeting on 13 August 2018 and that Mr Simon believed he should be paid more:

•  Mr Simon relates that in the conversation on 13 August 2018, “I asked what my salary as a Tradesperson - Sign Writer would be to which Mr Hineman said I would receive $36 per hour and would still be required to perform FOB duties” 20, to which he responded that this arrangement would be unfair since he “would still be required to perform duties of a Sales/Key Account Manager”;21 and

•  Mr Hineman relates that during their conversation on 13 August 2018, “I told him that he would earn $36 per hour base, and that this meant he could earn more than he did as an Account Manager due to the overtime. He never said to me that it was unfair to pay him that. He did say that because of his experience he should be paid more than Matt Short, but I reminded him that Matt had more responsibilities as the Production Manager.” 22

[23] A handover was undertaken by Mr Simon as well as reassignment of several of his duties after which he proceeded on annual leave between 1 and 12 August 2018. 23 During the period of his leave the NGS Group started paying him $36 per hour which on Mr Simon’s calculation equated to “a salary of $71,136 per annum. This was significantly less than my ordinary salary of $90,363 per annum”.24

[24] When Mr Simon returned from leave on 13 August 2018 he continued to perform at least some duties of his former position. A debate arose between Mr Simon and Mr Hineman about the vehicle that had been allocated for Mr Simon’s use and the motives behind what had been said by Mr Hineman to Mr Simon at the time. 25

[25] More significantly a dispute emerged between them about the payment that was to be made to Mr Simon. What is clear from the evidence is that Mr Simon disputed the proposition that he be paid $36 per hour.

[26] The dispute about the basis of payment for Mr Simon’s tradesperson role continued over several days, culminating on 21 August 2018. After being provided with an employment contract pertaining to the tradesperson role and expressing the view that he was unhappy with the salary “because I would still be expected to manage FOB and “I should be getting paid more than Matt (Short) as I have been here for 18 years and given I have 10 years on him””, 26 Mr Simon says that he was directed within the meeting by Ms Munday and subsequently told by Mr Hineman that he should sign the contract then and there. Mr Hineman sees the conversation somewhat differently, but ultimately accepting that he had requested Mr Simon to sign it in the meeting:

“On 21 August 2018, I had a meeting with Johnny and Sophia Munday. I don't recall Sophia directing Johnny to sign the contract. I don't believe she would be strong enough to tell him to do that. I did say something along the lines of, "can't you just sign it?", however I also told him that there was nothing sinister in the contract. Johnny told me that he would not sign the contract in its current form and said that he wanted to negotiate his pay. I said no.” 27

The work performance warning

[27] On 28 June 2018 Mr Simon was given a warning letter by Mr Hineman which followed a complaint that had been made about Mr Simon’s handling of a particular client. 28 The letter was signed both by Mr Welsh and Mr Hineman, as well as being acknowledged Mr Simon, who signed it feeling he had no other option than to do so:29

“PRIVATE AND CONFIDENTIAL

28/06/2018

John Simon

Dear John,

WARNING LETTER

This letter is about your performance/conduct during your employment with NGS Group.

On the 28^th of June you met with Allan Hineman and Kate Welsh and at this meeting you were advised that you performance/conduct has been unsatisfactory and that immediate improvement is required.

In particular you were advised that on the 3^rd of May an Email from [client name removed] from [NGS Group employee name removed] was sent to you and they received no response to this request for Signage quotes for their [client name removed] tender sent to you.

On the 27^th of June Rohan Welsh and Garry Nelson attended the [client name removed] to be told that your responses to their requests either through email or phone calls were unsatisfactory, and had led to NGS Group not being considered seriously for further projects. Under your Account Management [client name removed] have progressively gone backwards as an account from a $300k custoemr to this year being under $20k

In this meeting you were asked if you had anything to say or to response to the situation and you indicated that you had tried to sweep this client under the carpet due to the fact you could not find a way to get along with them and found it too difficult to deal with. In saying this you have not sufficiently replaced the lost business with new clients also.

After considering the situation it is expected that you performance/conduct improves and specifically that you embrace that NGS Group is a customer first focused business and every Phone call and email is answered immediately. We will not and cannot except that you cant answer you clients requests in a timely manner.

This is you first warning letter. Your employment may be terminated if your performance/conduct does not improve. A copy of this warning letter will be kept on your file.

I propose that we meet again on the 1^st of August to discuss your progress and review your efforts to improve you clientele relationships. Please let me know if this date is convenience for you. If you wish to respond to this formal warning letter, please do so by replying in writing.

Yours sincerely

Rohan Welsh
Owner
[signature omitted]

Allan Hineman
General Manager
[signature omitted]

John Simon
Employee
[signature omitted]”

Workplace bullying

[28] After being promoted to the position of Account Manager in February 2015 Mr Simon was given a flexible working arrangement to enable him to attend to the care of his children. Mr Simon has two children, one of whom was diagnosed with several disorders in early 2018 and as such is unable to participate in childcare. 30 The flexible working arrangement enabled Mr Simon to pick up his daughter from school on Mondays and Tuesdays, with the hours to be made up by working from home Monday and Tuesday afternoons and staying late Wednesdays to Fridays.31

[29] Mr Simon’s workload had earlier changed from July 2014 as, in addition to his usual duties as Production Manager, he also became responsible for sales duties including product quoting, client accounts and site measuring which required travel both throughout Victoria and interstate. 32 While Mr Hineman disputes the change in workload he accepts that at the time in question Mr Simon was doing sales duties with a view of him transitioning into a sales role.33 During this time Mr Simon also began to experience financial hardship on an ongoing basis which was known to the NGS Group.34

[30] Additionally, in or around October 2017 Mr Simon was diagnosed with a matter requiring surgery and around three weeks personal leave for recovery time. 35 While it is disputed between the parties how Mr Simon’s leave for this surgery was arranged, it is agreed that the leave for the surgery occurred between 25 January 2018 to 16 February 2018.36 Mr Hineman also puts forth in his evidence that the NGS Group was aware that Mr Simon had previously suffered depression and anxiety previously, in and around 2013.37

[31] Against this background was a sequence of events and conversations which saw a deterioration in communication with Mr Simon in the workplace. In or around December 2017 overall sales were down and increased scrutiny was being placed both on the sales team generally and individuals within the team. Mr Simon recalls a sales meeting during this time, with the exchange reported above in which Mr Hineman agreed he probably said words to the effect “everyone's performance is shit and if you don't like it you can fuck off somewhere else", with Mr Simon’s characterisation being that Mr Hineman “yelled” those words. 38 Mr Hineman does not dispute the wording given the disappointing sales results at the time however, clarifies that the comments were directed at the team generally and not Mr Simon individually.

[32] In or around December 2017, Mr Simon met with Mr Hineman, Mr Nelson and Ms Kate Walsh, the company’s Sales Manager, and Mr Welsh’s sister. Mr Hineman said a number of things, including “that NGS was worried about my wellbeing and to "pick up your bottom lip, sad sack"”; and that “he was worried about my performance and compared me to past NGS underperforming employees”. Mr Hineman also asked Mr Simon “to estimate where my sales would be at the end of the month to which I replied that I was unsure” after which Mr Hineman “shit, my three-year-old son could work that out”. 39 Mr Hineman does not believe the meeting was in December 2017, but at some other, unspecified time, but broadly accepts there was such a meeting, although denying the “sad sack” reference attributed to him. Mr Hineman did not deny the commentary that he said his 3 year old son could work out the end of month sales projection:

“At the meeting, I would not have called Johnny a "sad sack'' as that is not part of my vocabulary. I may have compared him to Matty Hammond, but it would have been because Johnny was significantly underperforming and had only received about 9 orders in the last three months. For example, in January 2018 he had a budget of $61,000 and only did $28,000, and in February 2018, his budget was $82,000 and he did $11,000.” 40

[33] Other comments were made in the office regarding Mr Simon’s employment arrangements with Mr Hineman approaching Mr Simon in early 2018 and asking him:

“… why I couldn't put my daughter in childcare given that other NGS staff members, including Sandra Diaz (Ms Diaz)- Sales Manager, and Sophia Munday (Ms Munday) - Bookkeeper, put their children in childcare. Mr Simon replied that “I had finished early on Monday and Tuesday for about three years with no issue. I then explained that I made up the hours by working from home and on weekends. I reiterated that my daughter was unable to attend childcare because of her disability to which Mr Hineman responded, "Well, everyone else can".” 41

[34] While Mr Hineman does not dispute that the conversation occurred, he does dispute saying words to the effect that “well, everyone else can”. 42 In his response on the subject of this conversation, Mr Hineman endeavours to suggest that a change to Mr Simon’s working arrangements might be for his benefit, but ends up disclosing that he felt Mr Simon was taking advantage of the arrangement:

“30. In early 2018, I asked Johnny if he could put his daughter in childcare like Sandra Diaz (Account Manager) and Sophia Munday (Bookkeeper); I didn't ask him if he couldn't. I'm confused by Johnny's comments. I spoke to him because I was worried for him. I knew he was struggling for money and to meet his budgets at work. I also knew that Em, his wife, worked at a child care centre. So I had a chat with him about how flexible he could be and how we could rectify his work situation.

31 . We had provided him with flexible working hours for three years, and had always been understanding. I refute Johnny's allegation that I said "well everyone else can" when he said his daughter wasn't able to go to childcare because of her disability. I felt as though he was taking advantage of the flexible work hours we had given him.

32. When he was underperforming, I wanted to work out how we could lift his sales. However, Johnny did not want to be flexible at all.” 43

[35] In February 2018, Mr Simon disclosed to Mr Hineman that “[t]hings are a bit tough financially”, to which Mr Hineman responded ““look at your finances”. Mr Hineman then said that my wife did not hold" ... a high paying role so she could pick up and drop off your daughter””. 44 Following that discussion, Mr Simon attributes to Mr Hineman a comment about his personal effects, when the latter said in the presence of Mr Nelson and Ms Russell45 words to the effect of “Nice bag, I thought you had no money and were crying broke. Now you rock up with a new laptop bag”.46 Mr Simon later complained, through his solicitors in September 2018 that this comment was part of the verbal abuse and humiliation he experienced from Mr Hineman. Mr Simon also gave evidence about comments about his working arrangements from another employee Mr Garry Nelson, the Production Manager who “regularly made comments to me about my leaving early including, "oh, just the five hours today, Johnny" and "you're off already"”.47

[36] As part of Mr Hineman’s performance management of Mr Simon, steps were put in place from as early as March 2018 for Mr Simon to provide regular report backs surrounding who he had visited and received sales from. Mr Hineman describes these as general in nature and as a tool to ensure Mr Simon was up to date with his sales. 48 However, in April 2018 Mr Simon submits that by April 2018 the scrutiny on his work performance was increasing to the point that he was required to provide Mr Hineman with weekly updates on completed tasks, while being advised that he needed to ‘communicate better’.49

[37] On 16 May 2018 in response to the increased pressures and demeaning comments Mr Simon enquired as to the possibility of transferring to sign writer duties while also making a bullying complaint to Mr Welsh in early June 2018 against Mr Nelson and Mr Hineman to the effect that his working environment was ‘toxic’. Mr Simon’s evidence records several complaints being made to Mr Welsh about his concerns:

“33. In early June 2018 I made a telephone call to Mr Welsh during which:

(a) I complained that I was being bullied by Mr Nelson and Mr Hineman and that their behaviour had impacted my mental and physical health;

(b) I stated that Mr Nelson had mood swings and that working with Mr Nelson and Mr Hineman was "a toxic environment";

(c) I then asked whether I could return to my previous position of Sign Writer;

(d) Mr Welsh responded that he did not want me "back on tools" and wanted me to remain in my position as Sales/ Key Account Manager; and

(e) Mr Welsh then said, "Oh, I see what is happening here. I'll try to sort this out". 50

[38] In his oral evidence, Mr Simon elaborated that his reference to the “toxic environment” was the upstairs office area in which he worked in his Account Manager role. 51 Mr Welsh does not remember the term “toxic environment” being used, and denies the conversation having characterised Mr Simon’s experience as “workplace bullying”, with the discussion instead being “more around that he was struggling in his role and that I was trying to come up with some sort of solution that was going to benefit him and benefit the business”.52 Mr Welsh’s witness statement recalls the conversation in this way:

“19. In early June 2018, I had a telephone conversation with Johnny. This was around the same time that I saw the sales figures and realised that he was failing to meet his budget. This is also when he would have started receiving some negative feedback about his performance from NGS' General Manger, Allan Hineman. I am aware that Johnny was being told quite regularly by Allan that his performance was an issue.

20. During that phone call, Johnny told me he was confused about his sales targets and the fact that he was not reaching them. He said to me that he felt under pressure. He was blaming everyone else for his performance. I told him to get in there and just work. I tried to motivate him and give him some type of positive reinforcement that he could do the job.

21. Johnny said that he thought everyone was picking on him, but I do not recall him saying that the company was "a toxic environment". He did not make any mention of bullying or stress and he did not ask me whether he could return to the trades role. Allan passed his request on to me. I don't recall saying anything like "oh I see what is happening here. I'll try to sort this out".” 53

[39] Mr Simon recalls a meeting took place the following day, with the following exchanges:

“34. The following day, I attended a meeting with Mr Welsh, Ms Welsh, Ms Russell and Mr Nelson in the kitchen, during which Ms Welsh stated, "we think you are here taking the piss. No one wants to help you because you should be able to figure this out by yourself'. I responded, "It feels like everyone is ganging up on me". Mr Welsh then asked those in attendance to support each other and "work together".” 54

[40] Mr Welsh recalled the meeting but does not recollect the meeting going the way in which Mr Simon claims. While not specifically recalling Mr Simon saying he felt ganged up on, Mr Welsh nonetheless recalls he may have “said something along those lines. I recall he was blaming everyone else for his performance”. 55 Mr Hineman though recalls first being aware of workplace bullying allegations in June, and that they arose during a phone conversation between Mr Simon and Mr Welsh which had come to his knowledge around the same period that the warning letter had been given. Mr Hineman was aware that those complaints related to him as well as Mr Nelson.56 He recalls a reference to there being a toxic work environment, with Mr Simon saying to him in May 2018, in the context of a discussion about budgets, that “it is a toxic environment and that he couldn't do it anymore”.57

[41] While a further meeting was also held in late June 2018 with Mr Simon, Mr Welsh and Mr Hineman to discuss the complaint further, the evidence does not disclose what if any investigation of the complaint occurred nor whether there were any processes or procedures developed to prevent further behaviour in this meeting. Mr Hineman’s evidence is that he was unaware that Mr Simon felt that he had been bullied and was surprised Mr Simon had not raised the issue with him directly, giving evidence that”

“I asked him why he went to Rohan and not to me, as Rohan didn't have a lot of involvement inside the business at that time. Also, Johnny had not raised any complaints about Gary Nelson with me before, and I believed they actually worked well together. The most he ever said to me was "Gary is a grumpy old shit"”. 58

[42] In late June 2018 Mr Simon received a phone call from Mr Hineman regarding his performance asking "where is your sales budget". Mr Simon submits he cried and said “this is a toxic environment. I can't do this anymore”, with Mr Hineman responding “We'll find something else for you”. 59 On 28 June 2018, Mr Simon received a formal warning letter regarding his performance and continued to receive ongoing performance management.

[43] Mr Hineman gave evidence that there were some informal discussions with ‘people in the office’ in terms of ‘team work’ and ‘supporting everyone’ 60 as a result of the complaint. Mr Hineman’s evidence is that he spoke with Mr Nelson to the effect that “you know, Johnny is not happy with those comments; we need to leave that alone. So if the banter is upsetting him, leave the banter aside, guys”.61 There was no evidence led as to when this conversation was said to have occurred, nor whether there were any witnesses present at the time of the conversation. Mr Hineman appeared unsure whether further comments had continued after Mr Simon’s complaint and led no evidence of whether there were any repercussions for Mr Nelson’s behaviour.62 Mr Hineman’s evidence about what was done by him about the workplace bullying complaint is noteworthy for its lack of precision about what he actually did, as well as not showing any obvious concern about the gravity of the matters complained about. What he saw was banter and other than saying to Mr Nelson “Gaz, enough is enough”, and “you know, Johnny is not happy with those comments; we need to leave that alone. So if the banter is upsetting him, leave the banter aside, guys”,63 he left it to Mr Welsh to address, despite earlier having said he had asked Mr Simon why he had taken the complaint to Mr Welsh since he “didn't have a lot of involvement inside the business at that time”. Mr Hineman’s evidence is also that he had informal discussions with Mr Welsh about the situation; however, what is presented is vague and imprecise:

“Would you have discussed that with Mr Welsh as well? Would he have been aware that you'd tried to deal with that - - -?---Rohan spent a lot of time - you know, obviously he had another job at that point in time - so we would have a lot of conversations over virtually every night. Did I discuss that particular incident with Rohan? Maybe. I may have said something like, look, I've had a chat to Gaz about, you know, not saying things to Johnny, because, you know, he's getting upset by those things that have been okay in the past, so you know, let's ease back on those things. So I may have made that comment to Rohan.” 64

[44] There was no evidence led that a formal investigation had been held into the complaint; that any findings as to whether bullying had occurred had be made nor whether there had been any repercussions for any of the behaviour. In September 2018, Mr Welsh advised Mr Simon’s solicitors that all staff involved “have been interviewed and it has been reiterated that there is no room for derogatory comments to co-employees within NGS” and that:

“2. We are currently working on a Grievance Resolution Process individually tailored for Johnny to ensure he can return to the NGS workforce comfortably and in the absence of any perceived negative actions or comments.

3. I am arranging for an external third party to assist NGS moving forward with the preparation of documented policies and procedures surrounding all work place harassment possibilities, including bullying. All staff are to attend sessions as part of this initiative”. 65

[45] Mr Hineman also gave evidence that “we've since conducted harassment and bullying workshops through the business, which we did in February”. 66

[46] In July 2018 Mr Simon sought medical treatment and was diagnosed with ‘work-related stress’ and was given a prescription to assist with anxiety and depression. 67 Mr Hineman’s evidence is that he was unaware of this diagnosis at the time.68

[47] In or around July 2018, discussions ensued between Mr Simon and Mr Hineman about Mr Simon returning to a sign writer position as originally raised by Mr Simon in May 2018. There is little detail surrounding the content or length of this discussion however, as discussed earlier, the parties’ evidence is that there were some discussion surrounding a car to be provided, a start date of 9 August 2018, as well as that salary would be discussed upon Mr Simon’s return from leave with a salary being somewhere in the realm of Mr Short’s, with Mr Simon being unaware at the time of Mr Short’s salary. As detailed above, Mr Hineman’s evidence claims there were also discussions held in the two-week period prior to 1 August 2018 in which Mr Short’s salary was disclosed, however his evidence in this regard is slight and not reliable, taking into account the whole of his evidence which is fraught with inexact recollections, assumptions and statements that something “would have” occurred. What is more likely is that the issue of salary was simply not dealt with or postponed until Mr Short’s return from leave on 13 August 2018.

[48] Upon his return from leave, Mr Simon had a further conversation with Mr Hineman about the new role surrounding sales tasks such as Free on Board out of China and managing shelves for several bottle shops, the type of vehicle Mr Simon would receive and finally the salary. During these discussions Mr Simon’s evidence is that Mr Hineman made comments to the effect that he would receive Ms Welsh's motor vehicle (a Nissan Captiva). Mr Simon replied that Ms Welsh's vehicle would be inappropriate if he was to return to a sign writer position and that a dual cab ute would be more practical because he needed somewhere to store his tools. Mr Simon recalls that Mr Hineman “shouted "well I don’t give a fuck about your tools. That is the car you're getting"”. 69 Mr Hineman records a different tone and context to the discussion, saying instead “I don't give a fuck about your tools, I'm more concerned about your family and how you are going to drive your family around'”.70 When asked about the subject in cross-examination, Mr Simon did not directly dispute Mr Hineman’s somewhat more nuanced recollection of the phraseology employed.71

[49] After Mr Hineman advised Mr Simon that he would receive $36 per hour in the role, Mr Simon submits that he disputed the salary given the reduction from his previous salary on the grounds that he would still be required to perform some sales aspects. Mr Simon submits he enquired about an employment contract that he could review stating words to the effect that “good, because I want to look over it before making a decision”. 72

[50] The contract was presented to Mr Simon in a meeting on 21 August 2018. Mr Simon submits that Ms Munday directed him to sign the contract. After Mr Simon declined, Mr Hineman said words to the effect that “Can’t you just sign it” to which he replied that he wished to negotiate the rate. Mr Simon again pursued his claim that he should be paid more than Mr Short which was rejected by Mr Hineman in words to the effect “I don’t give a fuck if you’ve been here for three months just read over and sign it”. 73 Mr Hineman does not recall using those words, suggesting that “It's a rarity for me to use that language when talking with staff”.74 However, after taking account of all of Mr Hineman’s evidence and his generally less than clear recollection of events and conversations, I consider it more than likely that he did say the words Mr Simon recalls.

[51] From 29 August 2018 Mr Simon commenced paid leave and there is no evidence that any further conversations occurred between Mr Simon, Mr Welsh and Mr Hineman after the meeting on 21 August 2018. All communications after this meeting appeared to occur by way of Mr Simon’s legal representative and were confined to discussions surrounding a return to Mr Simon’s Account Manager position.

[52] The matters of Mr Simon’s workplace bullying complaint and NGS Group’s warning of continued poor work performance are not directly relevant to determination of whether he was dismissed, however they are potentially relevant to assessment of whether there was an unfair dismissal, and remedy in the event there was.

Consideration – whether there has been a dismissal for reason of repudiation

[53] As set out above, the first matter to be determined is whether Mr Simon was dismissed within the meaning of the Act. He argues that the circumstances in which he found himself in 2018 amount to repudiation on the part of NGS Group, that once accepted by him are to be construed as a dismissal:

“18. The Respondent’s conduct from 9 August 2018 to 21 December 2018, in paying the Applicant at a lower rate of pay pursuant to the Proposed Sign Writer Agreement, constituted a repudiation of the Sales/Key Account Manager Agreement. The Applicant elected to accept this repudiation, by way of the letter from his solicitors on 21 December 2018, as terminating his employment. As such, the Applicant’s employment was terminated at the Respondent’s initiative and he was dismissed in accordance with section 386(1)(a) of the Fair Work Act 2009 (Cth).

19. Further and alternatively, the Applicant was forced to resign from his employment because of the conduct, or a course of conduct, engaged in by the Respondent. As such, the Applicant was dismissed in accordance with section 386(1)(b) of the Fair Work Act 2009 (Cth).” 75

[54] In this regard, the Applicant points to the following actions on the part of the NGS Group to repudiate his contract of employment:

“59. On 8 August 2018 the Respondent unilaterally reduced the Applicant’s pay. The witness statement of Allan Hineman states “we agreed we would discuss salary when he was back from leave”, followed by, “NGS started paying [the Applicant] $36 per hour from 9 August 2018. At the time [the Applicant] was on leave”. As such it cannot be reasonably maintained that the Applicant in any way agreed to this unilateral reduction of salary as negotiations were still on foot. The Respondent failed to rectify this breach when given a number of opportunities to do so by the Applicant, who affirmed on 21 August 2018 during a meeting and by instructing letters to be sent via his solicitor on 11 September 2018, 20 September 2018 and 9 October 2018 that he did not accept the unilateral salary reduction. As such it cannot be said that the Applicant acquiesced to the unilateral salary reduction. The Respondent’s outline of submissions states that it did not have “any intention to bring to bring the Applicant’s Employment to an end”, and “the Respondent had no intention to repudiate the Applicant’s employment contract”.The Respondent seemingly relies on this subjective intention throughout its submissions. However, this reliance is misplaced, as even if the Respondent did not intend to repudiate the employment contract with the Applicant, repudiation does not require intention: City of Sydney RSL & Community Club v Balgowan [2018] FWCFB 5 at [26]; Whitaker v Unisys Australia Pty Ltd [2010] VSC 9 at [33].

60. The salary of the Applicant formed a fundamental and essential term of his employment with the Respondent. The Respondent, by refusing to pay the Applicant the salary he was entitled to under the Sales/Key Account Manager Agreement, exhibited conduct that evinced a renunciation of the Applicant’s employment as a whole or a fundamental obligation under it, thus giving rise to repudiation: Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [119]. This degree of change to the Applicant’s employment and size of the breach was significant and profound: Keays v JP Morgan Administrative Services Australia Ltd [2012] FCAFC 100 at [81], resulting in a $19,227 decrease in the Applicant’s salary per annum constituting a 21.2% decrease in salary as well as a different motor vehicle.

61. This repudiation gave rise to an option for the Applicant to either affirm the contract or to treat the contract as at an end by accepting the repudiation: Visscher v Giudice (2009) 239 CLR 361 at [53] – [55]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Automatic Fire Sprinklers v Watson (1946) 72 CLR 435. This option to accept the Respondent’s repudiation was exercised by the Applicant by instructing the letter sent via his solicitors on 21 December 2018 bringing both the employment contract and employment relationship to an end. The employment relationship was therefore terminated at the initiative of the Respondent on the grounds of repudiation in accordance with section 386(1)(a) of the Fair Work Act 2009 (Cth).” 76 (footnotes omitted)

[55] That which will constitute repudiation was considered by the High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd 77 (Koompahtoo) in which Gleeson CJ, Gummow, Heydon and Crennan JJ said as follows:

“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word “repudiation” in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.

In the past, some judges have used the word “repudiation” to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.

. . .

For present purposes, there are two relevant circumstances in which a breach of contract by one party may entitle the other to terminate. The first is where the obligation with which there has been failure to comply has been agreed by the contracting parties to be essential. Such an obligation is sometimes described as a condition. In Australian law, a well-known exposition was that of Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd who, in comparing conditions and warranties, employed language reflected in many statutory provisions. The widespread statutory adoption of the distinction between conditions and warranties, or essential and inessential terms, is an established part of the background against which the common law has developed. The Chief Justice of New South Wales said (references omitted):

“In considering the legal consequences flowing from a breach of contract, it is necessary to remember that (i) the breach may extend to all or to some only of the promises of the defaulting party, (ii) the promises broken may be important or unimportant, (iii) the breach of any particular promise may be substantial or trivial, (iv) the breach may occur or be discovered (a) when the innocent party has not yet performed any or some of the promises on his part, or after he has performed them all, and (b) when the innocent party has received no performance from the defaulting party, or has received performance in whole or in part; and to remember also that the resultant rights of the innocent party and the nature of the remedies available to him may depend upon some or all of these matters.

The nature of the promise broken is one of the most important of the matters. If it is a condition that is broken, ie, an essential promise, the innocent party, when he becomes aware of the breach, has ordinarily the right at his option either to treat himself as discharged from the contract and to recover damages for loss of the contract, or else to keep the contract on foot and recover damages for the particular breach. If it is a warranty that is broken, ie, a non-essential promise, only the latter alternative is available to the innocent party: in that case he cannot of course obtain damages for loss of the contract.

The question whether a term in a contract is a condition or a warranty, ie, an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor. If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight. If he contracted in reliance upon a substantial performance of the promise, any substantial breach will ordinarily justify a discharge. In some cases it is expressly provided that a particular promise is essential to the contract, eg, by a stipulation that it is the basis or of the essence of the contract; but in the absence of express provision the question is one of construction for the Court, when once the terms of contract have been ascertained. In general, Courts of common law have been more ready than Courts of Equity to regard promises as essential. This is in part due to the fact that Courts of common law are in the main concerned with ordinary commercial contracts in which it is common to find provisions which are intended to be strictly and literally performed. It is now provided by s 13 of the Conveyancing Act 1919 (taken from the Judicature Act 1873 , 36 and 37 Victoria, Ch 66, s 25(7)) that stipulations in contracts, as to time or otherwise, which would not before the commencement of the Act have been deemed to be or to have become of the essence of such contracts in a Court of Equity shall receive in all Courts the same construction and effect as they would have heretofore received in such Court. This serves to make equitable liberality of construction supersede common law strictness, so far as is consistent with apparent intention, in fields where equity and common law overlap; but it does not affect the principle that effect must be given to the apparent intention of the parties as disclosed in the contract.”

What Jordan CJ said as to substantial performance, and substantial breach, is now to be read in the light of later developments in the law. What is of immediate significance is his reference to the question he was addressing as one of construction of the contract. It is the common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract and (in a case such as the present) the commercial purpose it served, that determines whether a term is “essential”, so that any breach will justify termination.

The second relevant circumstance is where there has been a sufficiently serious breach of a non-essential term. In Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, the English Court of Appeal was concerned with a stipulation as to seaworthiness in a charterparty. Breaches of such a stipulation could vary widely in importance. They could be trivial or serious. The Court of Appeal held that to the accepted distinction between “conditions” and “warranties”, that is, between stipulations that were in their nature essential and others, there must be added a distinction, operative within the class of non-essential obligations, between breaches that are significantly serious to justify termination and other breaches. This was a recognition that, although as a matter of construction of a contract it may not be the case that any breach of a given term will entitle the other party to terminate, some breaches of such a term may do so. Diplock LJ said that the question whether a breach by one party relieves the other of further performance of his obligations cannot always be answered by treating a contractual undertaking as either a “condition” or a “warranty”. Of some stipulations “all that can be predicated is that some breaches will and others will not give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend upon the nature of the event to which the breach gives rise”. 78” [Footnotes omitted]

[56] The question of whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate 79 and is a question of fact not law.80 Relevantly, for the present purposes for there to have been a variation inferred by the conduct of the parties, it must be found that the conduct of the parties is capable of proving all the essential elements of a variation, including acceptance.81 The mere silence of an employee is not acceptance, and neither is the continued performance of duties by an employee on its own. The context of the continued performance of duties must be viewed as a whole and as a question of fact, with there being no acceptance where there has been an unequivocal rejection of the proposal coupled with continued performance.82 Repudiation may exist where an employer reduces the wages of an employee without the employee’s consent83 or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract.84 Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.

[57] Consideration must first be given to whether there has been a breach of an essential term of the contract of employment. As set out above, the test of essentiality includes an assessment of whether the matter is of such importance to the promisee that they would not have entered into the contract without it. It is plain from the parties’ conduct construed objectively that the question of Mr Simon’s forward remuneration is to be regarded as essential; he plainly objected to performing the role at the rate on offer and was prepared to suffer continuing in the Account Manager role if mutual terms could not be achieved. NGS Group saw it as important to retain relativities between Mr Simon and its other employees and would not negotiate with him about the subject. The question of whether the breach is of a non-essential term does not arise in this matter.

[58] What is clear from the narrative set out above is that Mr Simon explored the possibility of moving from an Account Manager role to that of a tradesperson but that he did not irrevocably or unconditionally commit to doing so. By the time Mr Simon returned from leave on 13 August 2018, neither he nor NGS Group had concluded the negotiation that needed to take place on the essential terms of the transfer and ongoing engagement. In particular, there is no doubt that he and NGS Group had not by that time concluded to a point of consensus their negotiations about the pay Mr Simon was to receive.

[59] The proper characterisation of the duties Mr Simon performed when he returned from leave on 13 August 2018 is subject to some ambiguity, with Mr Simon saying that he “continued to perform sales duties which included Free on Board (FOB) out of China and managing shelving for several bottle shops”, but with him agreeing that upon his return he “performed the position of Tradesperson”. 85 Mr Hineman agrees that when Mr Simon returned from leave, he undertook the trades role, with his daily duties involving “manufacturing signs, installing signs, manual factory work and liaising with the Production Manager”. Mr Hineman argues that the continuing sales duties would not have taken more than an hour a week; that Mr Simon had the choice of whether he took on the FOB duties; that “[w]e thought it was good for him to keep a hand in sales in case he wanted to revert to the role” and that, with Mr Simon performing the trades role between 13 and 28 August 2018, Mr Simon “never mentioned to me, and I'm not aware he mentioned to anyone else, that he wanted to go back upstairs to the Account Manager role”.86

[60] The overall circumstances in which Mr Simon explored the possibility of a movement from his Account Manager position is that he was failing to some extent, if not to a significant extent, in that job. He argues that he was subjected to bullying. NGS Group and its witnesses reject that possibility. Even so at the very least, two things are factually evident. Firstly, that Mr Simon was under such significant pressure in his job, or even perhaps life in general, that he asked Mr Hineman whether, if he stepped away from sales there might be a position elsewhere and NGS. He may have been very emotional and cried either in that or earlier conversations. 87 Secondly, on 28 June 2018 he received the written warning detailing his performance in the Account Manager role. Those factors at least explain why Mr Simon may have been motivated to consider alternatives. However, the consideration of alternatives is not to be regarded as a blank cheque – move me somewhere and pay me what you will.

[61] Instead the proposition being put forward by Mr Simon must reasonably be seen to be something akin to an invitation to reach agreement about an alternative to the then prevailing Account Manager position. Contractually of course, for a variation of contract to have occurred such would need to have been subject to offer, acceptance, consideration of the terms and intention to create a legal relationship in the usual way, and once negotiations had concluded and agreement on terms reached, the Account Manager contract would be terminated and the new one commence. 88 Further, by mid-September, Mr Simon had informed NGS Group that he viewed resolution of the salary dispute as essential to the continuation of his relationship with the firm and that failing agreement, he expected to return to the Account Manager position.

[62] The fact that there had been a change in duties on one date and a change in pay at another date is not especially unusual and does not stand for the proposition that receiving the pay rate $36 per hour was tantamount to Mr Simon accepting what was really only an offer of payment at that rate.

[63] The evidence does not reasonably lead to a finding that Mr Simon at any time “accepted” the pay rate in the sense of being seen to contractually accept what was on offer by NGS Group. Instead the evidence shows unambiguously that by no later than 21 August 2018 Mr Simon indicated that he was not going to accept the amount offered. Contractually speaking, the logical product of a failure to reach agreed terms would be that there could be no acceptance and thereby no contract. In the first of three letters from Mr Simon’s solicitors, dated 11 September 2018, the following was unambiguously put forward on his behalf:

“Employment Contract

Our client has instructed us that he has now had an opportunity to review the employment contract dated 21 August 2018 for the position of Sign Writer. Given the unfavourable terms contained therein, our client rejects this offer of employment. Accordingly, once he is fit to do so, our client will return to his existing position as Sales/Key Account Manager in accordance with the existing agreement between the parties. Alternatively, he remains open to an improved offer from the company for the position of Sign Writer.” 89

[64] In this situation, the alternatives contractually available to NGS Group were to either do something that would get them to the point of consensus with Mr Simon or to take him at his word and return him to the Account Manager position once he was fit to do so. In the context of the storm that had been brewing for some time, the return of Mr Simon to the Account Manager position would probably be the least desirable of the alternatives available for either party since he was hardly flourishing in the role and by that time also had accused his manager and co-worker of bullying conduct. While that may be so, the cleft stick in which the Respondent was being squeezed made that essentially the only viable alternative if agreed terms for the transfer to a tradesperson position could not be reached.

[65] Accepting that small business employers will frequently have difficulty accessing professional advice on the subject of employment negotiations or that they will sometimes endeavour to move poor situations forward without necessarily applying all the expectations of natural justice, transparency or contractual negotiations, any view held by Mr Welsh or Mr Hineman or any other manager of the NGS Group to the effect that Mr Simon could have been managed sideways by agreement should have been unambiguously dispelled with the receipt by the company of the second and third correspondence from Mr Simon’s solicitors respectively dated 20 September 2018 and 9 October 2018. There is no doubt from that correspondence of the seriousness in which Mr Simon viewed the situation, with it firmly putting the proposition that a failure to satisfy his concerns may be viewed by him as a repudiation of his contract of employment, in which case he may exercise his right to elect to accept it as a termination of employment by the NGS Group.

[66] The letter of 20 September 2018 asked that NGS Group confirm that Mr Simon would continue to be employed in his Account Manager role and paid a salary of $90,363 and provided with a motor vehicle and a mobile phone. 90 The letter of 9 October 2018 was blunt; by paying Mr Simon in accordance with the terms of the proposed 21 August 2018 contract, this constituted:

“… a breach of a material term of our client's existing employment contract and evinces an intention by NGS to no longer be bound by the terms of our client's employment agreement or to fulfil it only in a manner substantially inconsistent with its obligations.

Such conduct conveys to a reasonable person in our client's position that the company has renounced the employment agreement as a whole or a fundamental obligation under it: BearingPoint Australia Pty Ltd v Hillard [2008] VSC 115. That is, NGS has repudiated the employment agreement.

Our client will allow NGS an opportunity to remedy this breach by confi1ming by close of business on 12 October 2018 that the company will continue to employ him in the position of Sales I Key Account Manager on a salary of $90,363 per annum with a motor vehicle and mobile telephone with the existing flexible working arrangements to accommodate his responsibilities as a parent.

If we do not receive this confirmation by close of business on 16 October 2018 our client reserves his right to accept this repudiatory conduct as terminating his employment and will commence proceedings to recover his resulting loss.” 91

[67] The point of this analysis is to indicate that there were, or should have been, multiple opportunities for NGS Group to understand that they were not in a position simply to convey to Mr Simon the impression that he had no choice other than to accept a payment of $36 per hour. Whether or not his contentions were legally correct, he very plainly was not having the proposition and wanted more. By not moving from their position of payment of $36 per hour for the trades role, coupled with a refusal to countenance Mr Simon to return to the Account Manager position, the NGS Group repudiated Mr Simon’s contract of employment.

Acceptance of repudiation

[68] Conduct of an employer which repudiates the contract of employment does not by that act alone bring the contract of employment to an end. A repudiation of the contract by the employer gives the employee who is not in breach the option to decide whether to continue, that is to affirm the contract, or to treat the contract as at an end by accepting the repudiation. 92 

[69] NGS Group was on notice from Mr Simon in his solicitors’ third correspondence, dated 9 October 2018 that he reserved his right to accept the company’s conduct as a repudiation. 93 That eventuality came to pass through his solicitor’s further correspondence to the company on 21 December 2018 in which it was advised on behalf of Mr Simon that he considered himself to have been a victim of repudiatory conduct and that he accepted it as a termination of his employment. The letter communicated the following:

“We have provided your client with several opportunities to remedy this material breach and it has consistently failed or refused to do so. Your client has therefore evinced a clear and ongoing intention to no longer be bound by the terms of our client's employment agreement or to fulfil it only in a manner substantially inconsistent with its obligations. Accordingly, our client herein accepts your client's repudiatory conduct as terminating his employment and intends to commence proceedings to recover his resulting loss.

…

For the sake of clarity, our client now considers his employment to have ended at your client's initiative and to have been dismissed within the meaning of section 386(1) of the Fair Work Act 2009 (Cth).” 94

[70] Several weeks before Mr Simon’s acceptance of the repudiation, NGS Group proposed through its own solicitors a private mediation to be held on 14 December 2018. That was rejected by Mr Simon for reasons which included his reluctance to commit to the cost of private mediation until he had received a response to the earlier correspondence of 11 September 2018. 95 On 16 December 2018 NGS Group sought the return of the company vehicle provided to Mr Simon, which he facilitated. On 18 December 2018 Mr Simon was advised that his accrued personal leave would shortly be exhausted and invited advice “as to whether Mr Simon intends to access his accrued annual leave when this occurs”.96

[71] The product of this consideration is a finding that on 21 December 2018 Mr Simon elected to accept NGS Group’s repudiatory conduct and treated his contract of employment as having been terminated. It follows that such acceptance on the part of Mr Simon was a termination on his employer’s initiative and that accordingly he has been dismissed within the meaning of the Act. While the Applicant raises an alternative argument to repudiatory conduct, being the matter of whether he was forced to resign, it is unnecessary for that matter to be determined in view of this decision’s finding on the matter of repudiatory conduct.

Consistency with the Small Business Fair Dismissal Code

[72] As mentioned at the beginning of this decision, consistency with the Small Business Fair Dismissal Code requires that a person’s dismissal be consistent with the procedure set out either within the part headed “Summary dismissal” or “other dismissal” as well as that other procedures set out under the heading “procedural matters” have also been complied with.

[73] The Code itself is in these terms:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[74] In Mr Simon’s case there is no argument advanced by NGS Group that the termination of his employment came about because of conduct sufficiently serious to justify immediate dismissal. Similarly no aspect of the NGS Group’s case to the Commission would reasonably give rise to a finding that Mr Simon had been given a reason why he was at risk of being dismissed with that reason being a valid reason based upon his conduct or capacity to do the job. While there had been a precursor to that eventuality, being a warning given to Mr Simon in June 2018 about his work performance, the caution within the correspondence to the effect that Mr Simon’s “employment [may] be terminated if your performance/conduct does not improve” 97 was never activated to the point of termination of employment.

[75] Accordingly, a finding that Mr Simon’s dismissal was consistent with the Small Business Fair Dismissal Code is not available to the Commission. It follows therefore that consideration is required to be given as to whether Mr Simon’s dismissal was otherwise unfair taking into account the criteria within s.387.

Whether an Unfair Dismissal

[76] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows:

“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.”

[77] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 98

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 99

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 100

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 101

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 102 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 103” (original references)

[78] I will deal with each of the criteria within s.387 in turn.

(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)

[79] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 104

[80] There is no specific reason advanced by the NGS Group for Mr Simon's dismissal of any kind, whether related to his capacity or conduct, or valid or not.

[81] Nonetheless, it may be inferred from the overall evidence before the Commission that it was likely convenient from the company's perspective at least, that since Mr Simon had been experiencing some considerable difficulties in undertaking his role as an Account Manager over the first part of 2018 it was convenient to accept the opportunity presented to it in May 2018 when Mr Simon asked whether it may be possible to move to another position. Following from this in something of a “carpe diem” moment it is likely that NGS Group saw the potential move of Mr Simon away from Account Manager position to a tradesperson role as not only a good idea, but one that should be brought about if at all possible.

[82] Mr Simon had worked with Mr Welsh and his company for 18 years, having started when both were considerably younger than they are now. Even for a person starting a new job as an apprentice in 2000, it would have been less than likely that it could be foreseen that employment would continue as long as it has, given the turnover of employment generally, as well as the pressures for survival for small businesses. One can understand then that faced with a difficult, potentially unpleasant, situation in 2018 in which Mr Simon’s dismissal was identified in the warning letter as a real possibility, it is not much of a leap to see that a viable solution for NGS Group was simply to turn sideways so as to avoid a confrontation and to "keep the peace" in a manner in which both sides could have some dignity for as long as each could tolerate the other.

[83] From Mr Simon's perspective though what occurred with his employment during 2018 was not a caring response to his situation with his best interests in mind. He accuses Mr Hineman and Mr Nelson of having bullied him at work.

[84] However, even if those matters were accurate or somehow the NGS Group was simply trying to manage its way through a difficult situation, or perhaps shut down workplace bullying complaints that it neither welcomed or saw as justified, the Respondent strenuously denies that it has dismissed Mr Simon and has not set forward any alternative argument on the subject. That is, it is not put to the Commission that while the Respondent’s primary argument is that there was no dismissal, a secondary set of considerations should be taken into account in the event that the primary argument does not succeed. In its mind, there was no dismissal, and no reason for dismissal. This is not an instance in which a small business puts forward that it has done the best it possibly could dealing with a very difficult situation and that factors within that situation meant that nonetheless a valid reason for dismissal could be found.

[85] As a result, there is no alternative to the finding that there was no reason before the Commission for Mr Simon’s dismissal, let alone a valid reason relating to his capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[86] It follows that since NGS Group held no reason for the termination of employment that Mr Simon was not notified of any such reason.

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

[87] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 105 Since this was not the case, this criterion is a neutral factor in my consideration of whether Mr Simon’s dismissal was unfair.

(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

[88] Since there were no discussions with Mr Simon relating to dismissal this criterion is a neutral factor in my consideration of whether his dismissal was unfair.

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

[89] Consideration of this criterion is unnecessary since there is no evidence that Mr Simon’s dismissal related to unsatisfactory performance. While a warning had been given to him about his work performance in June 2018 the matters within that correspondence have not been submitted as the reasons for his dismissal.

(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

[90] NGS Group is a small business with only 12 employees at the time of Mr Simon’s dismissal and it appears more than likely that its size impacted upon the way in which the business decided to deal with Mr Simon’s employment. Even so, it had retained lawyers to act for it on the subject of its dispute with Mr Simon by no later than 24 October 2018. 106 It is unknown what advice, if any, that may have been provided by the lawyers to the NGS Group about Mr Simon’s employment. In the overall circumstance of this matter it appears more likely than not that the size of NGS Group impacted on the procedures it followed in dealing with Mr Simon’s employment.

(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

[91] For the same reasons as set out above, and notwithstanding the retention of lawyers for the Respondent around two months prior to the date on which Mr Simon’s employment was terminated, it is likely that the absence of dedicated human resource specialists or expertise within the NGS Group impacted on the procedures followed by the business in dealing with his employment.

(h) any other matters that the FWC considers relevant

[92] There is some, but not great, evidence before the Commission to the effect that Mr Simon’s work performance was under some significant strain during 2018. Whether that can be attributed to Mr Simon’s own health, the pressures of the Account Manager position or externalities impacting upon it, or to the actual performance of Mr Simon, or to the actuality of the workplace bullying that he alleged from Mr Hineman and Mr Nelson is a matter for some debate.

[93] It is unlikely in the overall context of the evidence before the Commission that Mr Simon’s complaint of workplace bullying was taken seriously by the NGS Group. A review of the available material on that subject would indicate that the conduct towards Mr Simon by Mr Hineman and Mr Nelson was likely unreasonable and that Mr Simon was entitled to view it as workplace bullying. Mr Simon’s complaints appear to be in at least two categories; complaints about the conduct of Mr Hineman and Mr Nelson towards him and complaints about aspects of performance management.

[94] The evidence generally supports a finding that Mr Simon was entitled to be aggrieved by many of the things said to him, and that those things were likely unreasonable. In some respects, the way Mr Hineman communicated with others is likely part of a broader workplace culture in which robust communication occurs and good-natured swearing and banter is tolerated. However, the reality is that one person’s good-natured banter is another’s bullying. It’s not the person saying the words who gets to determine if the comment is good-natured, but the person to whom the words are directed. By the start of 2018, Mr Simon was under some level of work-related pressure and likely felt threatened when told in a group meeting “everyone's performance is shit and if you don't like it you can fuck off somewhere else”. 107 He was also entitled to feel humiliated when Mr Hineman said, in front of Mr Nelson and Ms Russell “Nice bag, I thought you had no money and were crying broke. Now you rock up with a new laptop bag”.108 The comment was designed to embarrass and, with the reference to him being thought to be “crying broke”, Mr Hineman unintentionally or not disclosed Mr Simon’s private information to Mr Nelson and Ms Russell.

[95] Being told “I don't give a fuck if you've been here for three months. Just read over and sign the contract” 109 with reference to a request to sign the contract for the tradesperson position then and there, when Mr Simon wanted more pay as he had been with the NGS Group for longer than Mr Short, is intensely intimidatory and designed to be such.

[96] The complaints regarding performance management are not especially well particularised, however in the overall context of the available evidence, there appears to be some justification to NGS Group’s criticisms of Mr Simon, although in fairness, those complaints were identifiably broader than just Mr Simon, when Mr Hineman had cause to say to the group the things mentioned above; it wasn’t Mr Simon’s performance that was “shit”, it was “everyone’s”. While noting that Mr Simon objected to the content of the warning letter given to him, not the least because he thought the client was “difficult” and their behaviour “toxic” and that he acknowledged the warning letter by signing it since he felt he had no other option, 110 the detail in the warning letter within the context of all the evidence before me appears sufficient to show there was a performance issue on Mr Simon’s part that required addressing.

[97] These matters go to factors of Mr Simon’s knowledge and belief about his employer at a critical period during 2018. After raising a complaint of workplace bullying, NGS Group appears to have turned its back on him and nothing meaningful was done about the situation. When he retained solicitors to present his situation to his employer and seek a solution, no meaningful response was provided. When he drew to his employer’s attention the legal consequences of what he perceived as the situation, no real action plan was put to him. The exception to this pattern was Mr Simon’s refusal of an offer from NGS Group for private mediation in December 2018, which he declined because he “was reluctant to commit to the cost of a private mediation until [he] had received a response to [his] letter of 11 September 2018”. 111

[98] There are several other matters that may be relevant to the overall consideration of the application of s.387 and whether Mr Simon’s dismissal was harsh, unjust or unreasonable. There is at least some evidence that Mr Simon’s health had been under pressure potentially for some time, which I note, with him having been diagnosed and treated for an illness between October 2017 and February 2018 and then experiencing work related stress in July 2018 which required medication. If there were a real possibility that NGS Group were to say to this Commission that they got to this position through hapless inadvertence, and they very plainly have not, instead maintaining that there never was a dismissal, these matters of Mr Simon’s experiences through 2018 may count towards a finding that his dismissal was not unfair. Finally, Mr Simon’s length of service with the NGS Group and the circumstances in which he joined the company as a young person is a factor to be taken into account in assessment of whether his dismissal was unfair. 112

[99] As set out above, my primary finding is that there was no valid reason for Mr Simon’s dismissal (s.387(a)); that as a consequence of there being no reason given to him for his dismissal he was not notified of the reason (s.387(b)) or given an opportunity to respond (s.387(c)). It follows that since there was no discussions about his termination of employment there was no unreasonable refusal for him to be assisted by a support person in such discussions (s.387(d)). Similarly there is no finding to be made that Mr Simon’s dismissal related to unsatisfactory performance on his part (s.387(e)). I am satisfied that the size of the NGS Group and the absence of dedicated human resource specialists or expertise in its enterprise likely impacted upon the procedures followed in effecting Mr Simon’s dismissal (s.387(f) and (g)).

[100] In relation to the criterion within s.387(h), the circumstances of the repudiation of Mr Simon’s employment contract leans to a finding of unfairness, however NGS Group’s status as a small business, potentially with questions about what it could do with Mr Simon, leans against such a finding. On balance though, there must be a finding of unfairness; Mr Simon has arrived at his current state of unemployment because of the actions of his employer, which neither heeded his assertions about his legal position or how he would treat any action they took to change his contract of employment or address his workplace bullying complaint.

[101] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 113

[102] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable. It was harsh because the effect of NGS Group’s conduct was to terminate the employment of someone who had worked for it for 18 years without properly taking into account Mr Simon’s requests about his employment. It was unjust and unreasonable because the NGS Group acted contrary to its contractual obligations to Mr Simon.

[103] As a result of the foregoing consideration of s.387, I find that Mr Simon’s dismissal was an unfair dismissal.

REMEDY

[104] The provisions of the Act dealing with remedy once a finding of unfair dismissal has been made are within ss.390 – 392. Pursuant to subsection 390(3) of the Act an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[105] Mr Simon does not seek reinstatement to the NGS Group, with him distrusting them. 114 The level of his distrust is reinforced with his evidence that NGS Group did not initially provide him with the assistance he needed to access his portable long service leave accrual, and further there remain some unidentified issues with the payment of other accruals.115 Mr Simon also believes he could not approach the NGS Group for a reference for future employment, since he could not be sure they would provide him with a favourable reference.116 These matters combined speak to a greater than usual level of distrust on the part of an applicant about their potential reinstatement and those things, together with the fact that Mr Simon’s workplace bullying complaint remains unresolved, mean that reinstatement as a remedy would be highly problematic. As a result, my finding is that it is not appropriate for Mr Simon to be reinstated to his former employment with the NGS Group, but that it is appropriate for an order of compensation to be made.

[106] Section 392 deals with the assessment of compensation, providing the following:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(1) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(1) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(2) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[107] In assessing the amount of the order for compensation, I now turn to each of the criteria within s.392(2).

(a) the effect of the order on the viability of the employer’s enterprise

[108] Following the hearing and at the invitation of the Commission, the NGS Group filed certain materials relating to its financial position and in particular the requirement of the Commission to take into account the effect of an order for compensation on the viability of the employer’s enterprise. The additional materials are within a Further Witness Statement of Rohan Welsh which included three attachments. The Applicant did not seek to examine Mr Welsh on the further materials or to make submissions about it.

[109] The material filed by the NGS Group asserts that the company “is currently under financial pressure to the extent that should an order for payment of significant compensation be made by the Commission against it, NGS could find its financial viability under threat”. 117

[110] The Further Witness Statement of Mr Welsh refers to several matters supporting the above contention. I do not consider it appropriate to publicly detail the matters save to indicate that they relate to demands made in January and March 2019 by the Australian Taxation Office which include a garnishee notice to the company’s bankers as well as a Director Penalty Notice (a DPN) upon Mr Welsh. In addition, Mr Welsh’s Further Witness Statement includes correspondence from the NGS Group’s accountants, Progression Group. After identifying both the factor and impact of the ATO action the advice indicates the following matters: 118

•  “A DPN is a critical document that requires the Director to consider the appointment of an Administrator within 21 days or acknowledge that they become personally liable for any outstanding PAYG tax.”;

•  “On being advised of the DPN being issued, Nicholas Zoch from our office called a crisis meeting with Rohan and NGS General Manager, Allan Hineman for the 19 March 2019. This was based on the seriousness of the DPN in addition to NGS's depleted working capital position assessed at the end of February.”;

•  The need for Mr Welsh to make a home loan drawdown on his family home “has placed significant stress on the family finances as the equity in their modest … home has been absorbed”;

•  In the March meeting the parties prepared a cashflow projection for the period March to December 2019 and determined a supplier payment plan and established a significant cashflow shortfall in May 2019 that is required to be sourced from a third party;

•  Further, after referencing their client’s overdraft limit and noting that it is “effectively fully drawn” and that NGS is juggling its cashflow in certain respects, its view is that “NGS are in a precarious solvency position at present (which in our opinion is the worst it has been in the 18 years we have acted).”

[111] While I accept that the foregoing matters represent a precarious solvency position for the NGS Group and no doubt Mr Welsh personally, I note that NGS Group has not chosen to file in the Commission a Statement of Cash Flows, Profit and Loss Statement, or a Balance Sheet, although its accountants have said “we can furnish the Commission with bank overdraft statements, garnishee notices, director penalty notices, ATO portal reports, balance sheets, cashflow projections and any other document to support the above commentary”. 119 The absence of those documents mean that the effect of an order for compensation on the viability of the NGS Group’s enterprise is difficult, if not impossible, to independently assess. In a matter in which each party is represented by Counsel, and in which I have specifically invited submissions from the Respondent on the matter of viability it is not for the Commission to further request those documents. If NGS Group considered they may have persuasive value, it should have provided them. The material provided to the Commission does not sufficiently distinguish between the extent to which the tax liability has come about because of the Respondent’s activities instead of Mr Welsh’s own personal or other business interests. It also does not disclose whether other directors of the company have been served with similar notices (which could well be germane to the matter of enterprise viability).

[112] In relation to the advice given by the company’s accountants referred to above to the effect that the response to the ATO’s DPN notice includes either requiring the Director to consider the appointment of an Administrator within 21 days or to acknowledge that they have become personally liable for the outstanding tax, I note that no advice has been received by the Commission from the NGS Group to the effect that they are now in Administration.

[113] In assessing the effect of an order upon the viability of the NGS Group I consider that it is appropriate to accept that an order for compensation of the amount considered by me below is likely to have some negative impact. However, the extent of that negative impact is impossible to assess on the basis of the information presently before me. Mr Simon was one of 12 employees employed by the NGS Group at the date of his dismissal. He earned a salary of $90,363 per year, with superannuation paid in addition and was provided with a motor vehicle and mobile telephone. At least some others in the business earned the same or more; it was being put to him that if he accepted the rate of $36 per hour on the proposed contract for the sign writer position and worked overtime he would earn at least the same as in his Account Manager role. It may be inferred then that the company’s total wages bill is significant. If the wages of other employees in the business were typically lower than Mr Simon’s and a factor of seven times Mr Simon’s salary was used to consider the overall wages bill, such would impute a wages bill of more than $600,000 per year. In the alternative, if Mr Simon’s salary was actually fairly typical of others in the business, and a factor of 10 or 12 times was used, it would put the overall wages bill in the vicinity of $900,000 to $1.1m. These are no more than speculative estimates, however the range of estimates would suggest that the NGS Group overall size is not insignificant. It also should be noted that enterprise viability is not a function of just one cost line, but of the margin by which income exceeds cost. Evidence of those matters is not before me.

[114] While accepting that there will likely be some negative impact on the viability of NGS Group from an order for compensation, such impact as is capable of being objectively assessed leads to the view that the compensation assessed below, which is in the order of around 40% of Mr Simon’s annual base salary and about 37% of his salary plus superannuation, is unlikely in and of itself to be catastrophic to the operations of the company, albeit that there appears to be a cashflow issue of some significance in May 2019.

[115] Notwithstanding this observation though, I consider that some consideration should be given to not exacerbating what is obviously a difficult cash flow situation for NGS Group. In particular, a staging of the compensation should be ordered namely, the staging of the first payment will be such that it is not due until June, after the cashflow shortfall indicated for May 2019.

[116] After consideration of the matters before me on the subject of the NGS Group’s viability, the order for compensation will include that one-third will be payable within 14 days of the decision; one-third within 30 days; and the balance, one-third, within 45 days.

(b) the length of the person’s service with the employer

[117] As referred to elsewhere Mr Simon has spent 18 years working at the NGS Group, having joined the business when he was very young. He started and completed a signage apprenticeship with the company and worked in three different positions.

[118] In the context of a small business, as well as contemporary employment that is obviously a significant amount of time to be employed and is something to be taken into account in assessing compensation. Mr Simon is also approaching the age at which further employment can be difficult to obtain.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[119] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.”  120 (endnotes omitted)

[120] Assessment of the anticipated period of employment in this case is not without its challenges.

[121] From Mr Simon’s perspective he had arrived at the situation in December 2018 because of the workplace bullying he believes he was subjected to, as well as the intemperate and unjustified decision-making of the NGS Group when he raised complaints both about workplace bullying and the unresolved matter of his pay if he had moved to a tradesperson position.

[122] NGS Group see the situation differently putting forward that the most Mr Simon should be paid if compensation was ordered was the notice to which he would have been entitled 121 with this being justified on the basis that his dismissal was of a “technical nature” as well as the Commission being required to take into account “the nature of the culpability of the respondent if the Commission finds that there has been a dismissal”.122 It is also relevant to note that the NGS Group’s answer to some of the claims made by Mr Simon about his treatment was to point to the fact that in June 2018 he had been issued with a written warning about his work performance and the consequences of continued unacceptable performance.

[123] In assessing the anticipated period of employment there are likely at least two different issues which require some consideration in balancing; the allegations of workplace bullying; and the assertions made by NGS Group about his deficient work performance in the Account Manager role. A further matter to be taken into account is the state of Mr Simon’s health. Had Mr Simon not been dismissed in December 2018 each of those factors would likely have impacted upon the viability of continued employment. At that date Mr Simon had not been in the workplace for almost 4 months, albeit that he had been in receipt of paid leave entitlements since 29 August 2018 after being certified as medically unfit for work.

[124] It is insufficient in the context of these proceedings merely to say that a dismissed person such as Mr Simon would have otherwise continued indefinitely in their employment. Such would be highly unlikely given the overall fragility of the relationship in the latter half of 2018, and in particular in December 2018. By that time Mr Simon had been away from the workplace because of ill health for four months with there being no certain end in sight. On the other hand to suggest that the anticipated period of employment should be set at a low level and equating to the period of notice only is fanciful. The evidence does not suggest that under no circumstances could Mr Simon have contemplated a return to work. The correspondence from his solicitors repeatedly put forward the proposition, untested to any significant degree by the Respondent, that he wanted to return to his Account Manager position in the event terms could not be agreed about an appropriate wage for reassignment to a tradesperson role.

[125] Nonetheless there is an air of unreality about the propositions put forward by both parties for the prospects of future employment. Neither have grappled to any great extent with how things were with Mr Simon and his employment with the NGS Group in December 2018.

[126] The complexity of the circumstance is this; the relationship between Mr Simon and the people he worked with had deteriorated over 2018; that deterioration appears to be not only for reason of factors personal to Mr Simon and in particularly for his health and family circumstances, but it also was likely significantly impacted by actual workplace bullying directed in his direction by at least Mr Hineman and Mr Nelson. In relation to Mr Simon’s health there is some evidence given by Mr Simon to the effect that in July 2018 he had been diagnosed with work-related stress which required medication to assist with anxiety and depression. 123 Medical certificates were presented justifying his absence from work on personal leave for periods after 30 August 2018. There is no comprehensive medical evidence before the Commission about Mr Simon’s overall state of health or an expectation when he would be able to return to work. Nonetheless the evidence generally on the subject of Mr Simon’s health would suggest that a return to work near to mid December 2018 was unlikely and especially so if his workplace bullying complaints had not been satisfactorily resolved.

[127] When Mr Simon complained about workplace bullying, the actions of Mr Welsh were, to say the least, superficial and inadequate. Mr Simon’s work performance slipped and may even have slipped before 2018. The bald facts about the matters set out within the June 2018 warning letter support that Mr Simon should have been given such a warning; it is unlikely that the circumstances surrounding the warning were contributed to by the workplace bullying he was experiencing. The warning letter is very clear both about what caused the issue of the warning as well as what is to be expected on the part of Mr Simon. A person in a sales position who oversees a deterioration in the value of one important client from $300,000 to under $20,000 in a single year must reasonably be called to account for their involvement in the situation as well as being informed that the continuation of the situation is unsustainable. There is no evidence that could reasonably be accepted in this hearing which would cause a finding that the warning was unjustified because the factual circumstances surrounding the client in question were somehow not as they were presented in the letter.

[128] It would have been a challenge of some moment for Mr Simon to overcome the work performance issues set out within the warning letter, but it would not have been impossible to do so if he was properly focused and motivated and the workplace bullying issues had been addressed and diminished. While NGS Group certainly tried to game to their advantage an outcome to Mr Simon’s enquiry about moving to a trades role, Mr Simon likely tried the same in return and overreached with his very extensive legal correspondence which appears designed to inflate the dispute rather than settle it.

[129] Focusing upon the state of the relationship in December 2018, there would be no ongoing relationship at all unless Mr Simon actually returned to work. Notwithstanding his solicitors’ advice that he sought his employer accept his request that the company confirm it would continue to employ him in the Account Manager role, such was conditioned upon him being cleared to return to work by his medical practitioner. The overall evidence before the Commission leads to the view that a return to work from that point in December 2018 could feasibly only occur if Mr Simon was additionally satisfied that his workplace bullying complaint had been addressed and resolved. That would have required far more than the actions taken by NGS Group.

[130] Mr Welsh never really grappled with the possibility that Mr Simon had been bullied at work. His response to Mr Simon’s solicitors dated 12 September 2018 endeavoured to put forward steps taken by the company to resolve the workplace bullying complaint. On the one hand he says that “To think that the conduct by certain staff engaged by NGS has resulted in extreme adverse health, wellbeing and family implications for Johnny is unfathomable”, 124 yet on the other side the evidence reveals that the only steps taken of any significance by Mr Welsh about the situation were to speak to the named protagonists and caution them about the matters that were raised by Mr Simon as well is to take some uncertain training actions in February 2019.

[131] Given that Mr Simon had raised the complaints and seen that nothing of any significance had been done about them, acceptance that it was safe to return in December 2018 would likely have required a lot more action on the part of NGS Group. That action would include a real investigation, real ascertainment of facts and findings about any transgressing behaviour and then the issuing of sanctions in the event any adverse findings had been made. From late December 2018 that process was likely to take between two and three months.

[132] Separate to the process of properly investigating and determining Mr Simon’s workplace bullying complaints are the two issues of what may then have occurred at the end of that process as well as what may have occurred in respect of the continuation of the performance management that had been started with Mr Simon in June 2018 in his Account Manager role.

[133] In relation to the first issue, of Mr Simon’s response after a proper investigation into his workplace bullying complaints, it is entirely predictable that he likely would not have been especially satisfied of all the findings or the proposed ameliorating actions. Likely on the evidence before me there would be findings of workplace bullying which in a somewhat small workplace would be highly problematic. While people such as Mr Hineman and Mr Nelson could be cautioned about their conduct as well as asked to attend training or to apologise for their actions this is simply not a workplace in which Mr Simon’s reporting line or work location could be changed so that he never had anything to do with the two again. NGS Group’s workplace culture would also be unlikely to change particularly quickly, if at all.

[134] On the second matter, the continuation of Mr Simon’s performance management, it is likely that his legal assertion of his right to continue in the Account Manager role was setting himself up to fail. The very stark reduction in sales for the client who complained about his performance reveals such a depth of problem which may well have proved insurmountable. These two matters combined lead me to be pessimistic that Mr Simon’s employment with NGS Group in the Account Manager role would have continued very far, even upon a return to work after conclusion of an independent workplace bullying investigation. It is unlikely that Mr Simon’s employment with NGS Group would have continued for more than one to two months from the time the workplace bullying investigation had been concluded. He may well have found it all too much and resigned at that time, with or without another job to go to, or NGS Group may have actioned the matters warned of and dismissed him for a valid reason.

[135] Drawing these considerations together I find that the anticipated period of employment in December 2018 was four months.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[136] There is evidence from Mr Simon to the effect that he has been under significant pressure both financially and personally since leaving the NGS Group. 125 Part of the pressure he has experienced has included a dispute with his former employer about access to employment records so that he was able to access his portable long service leave.126 He relates that he has continued to be under significant distress which he attributes to the circumstances of 2018. The evidence taken by Mr Simon to obtain further employment after his dismissal includes the following set out within his witness statement:

“I planned on working for NGS for the foreseeable future as I was able to be very successful in my job. I have made several attempts at applying for new jobs but with no success. I have been searching online employment sites and talking to friends and family about potential work. As I have only ever worked for NGS, I do not have prior references or the ability to trust NGS in providing a fair and favourable reference to assist me in gaining employment. Due to the circumstances I have not been able to contact professional colleagues (relationships established while at NGS) due to the current situation. I look online daily for appropriate roles, and have phoned a few to get more details, however the lack of a reference has meant I have bad no success to date.” 127

[137] I accept this evidence as being an indicator of sufficient efforts on the part of Mr Simon within his unique circumstances to endeavour to mitigate the loss he suffered because of his dismissal.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[138] At the time of the hearing Mr Simon had not earned any remuneration since leaving the NGS Group.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[139] At the time of the hearing Mr Simon was not in employment and it is my understanding therefore that there would be no income reasonably likely to be earned by him between the making of an order for compensation and the provision of the compensation.

(g) any other matter that the FWC considers relevant.

[140] Several potential relevant matters require consideration by me in assessing the overall level of compensation. It is well-settled that if an application of the Sprigg guidelines yields an amount which appears either clearly excessive or clearly inadequate, there should be a reassessment of any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is appropriate having regard to all the circumstances of the case. 128

[141] Mr Simon’s length of service with the NGS Group and the circumstances in which he joined the company as a young person are extraordinary in the context of modern employment. The length of his service requires being considered from the point of view that the loss incurred by Mr Simon of stable, potentially ongoing employment, is from what appears to be his only employer. The circumstances in which he was eventually squeezed out of employment owing to an unresolved dispute about the terms of transfer to a trades job and an unresolved workplace bullying complaint, both unaddressed to any significant extent by his employer also require consideration. In relation to length of service with an employer, the following has been observed, in relation to a finding of whether a dismissal was unfair:

“[30] It is relevant that the Applicant was 54 years of age at the time of the dismissal, and had worked with the Respondent and its predecessor for some 23 years. The personal and economic consequences of his termination were potentially devastating. Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round”.” 129

[142] While expressed in relation to the matter of unfairness, the factors of age and length of service appear equally germane to assessment of the adequacy or otherwise of an amount of compensation otherwise to be ordered. In this matter, only length of service may be a relevant factor in assessment of compensation.

[143] There is no evidence before the Commission that Mr Simon wanted to be terminated from employment. In fact, the evidence is to the contrary that he wanted to continue in employment but upon his contractually agreed terms or upon terms that he could agree. This is not a circumstance, seen so often by the Commission, in which an employee-on-the-ropes angles for the pay-out of their employment. With some relatively minor effort and compromise agreed terms for the continuation of Mr Simon’s ongoing employment could have been achieved. Further, Mr Simon has had, and likely will continue to have challenges in obtaining future employment given his distrust of NGS Group about what they would say if approached for a reference. With only one former employer to point to, the task may be very difficult.

[144] Mr Simon’s contract of employment also enabled him to have a motor vehicle used both for work-related and private purposes. A valuation of the private use of the vehicle was not before the Commission.

[145] Overall, Mr Simon’s unique circumstances lead to the conclusion that the level of compensation earlier referred to may be clearly inadequate. I also take into account the small size of NGS Group. It is a small business with no appreciable employee relations or human resource management expertise available. Its size and lack of resources lead to the view there is a case for some reduction in the compensation ordered. Compensation based upon four months’ pay is likely insufficient, and clearly so, for a person who has served 18 years, lost their job through no fault of their own and who may now face significant difficulty in obtaining further secure employment.

[146] I consider that the amount of compensation derived above, based only on the anticipated period of employment, would be clearly inadequate and therefore requires adjustment. In overall terms my consideration is that because of the above factors the amount of compensation should be increased by 10%. The amount would be 15% if I took into account only the factors in Mr Simon’s consideration and took no consideration of the NGS Group’s circumstances, and especially the material which has been provided to the Commission about the financial circumstances of it and Mr Welsh. The formation of my view about the clear inadequacy of the initially derived compensation gives no consideration to the factors of shock, distress etc, within s.392(4) of the Act.

Compensation – how is the amount to be calculated?

[147] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 130 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages131.”132

[148] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 1

[149] As earlier set out, Mr Simon’s remuneration as account manager was on the basis of a salary of $90,363 per year with him also being entitled to a further payment of 9.5% superannuation and the provision of a motor vehicle and mobile telephone. I estimate the remuneration Mr Simon would have received, or would have been likely to have received, if the NGS Group had not terminated his employment to be $32,982 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 4 months. That amount is calculated as $30,121 that would otherwise have been payable as salary and $2861 that would otherwise have been payable on Mr Simon’s behalf to his superannuation fund. Because there is no information before me about the value to be ascribed to the provision of a motor vehicle or mobile telephone I have not included any amount for those items. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 133

Step 2

[150] Only monies earned since termination for the anticipated period of employment are to be deducted. 134 I have found that Mr Simon earned no remuneration from the date of his dismissal, and that there is also reasonably no remuneration reasonably likely to be earned by him between the making of the order for compensation and the payment of compensation ordered in this decision.

Step 3

[151] It is necessary to consider the impact of both favourable and unfavourable contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment, 135 noting that it may not be appropriate to deduct contingencies if all of the projected period of continued employment has passed.136 In Mr Simon’s case, I find there are none that ought to be taken into account in this matter, since the whole of the anticipated period of employment has passed.

Step 4

[152] I have considered the impact of taxation but have elected to settle a gross amount as set out in the table below and the compensation to be ordered will be subject to taxation according to law.

[153] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 137 As expressed above, I consider the amount of compensation initially derived by me to be clearly inadequate and that the amount should be increased by 10%. The formation of my view about the clear inadequacy of the initially derived compensation gives no consideration to the factors of shock, distress etc, within s. 392(4).

Compensation – is the amount to be reduced on account of misconduct?

[154] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. In Mr Simon’s case however, I am satisfied that misconduct on his behalf did not contribute to NGS Group’s decision to dismiss him. Therefore the amount of the order for compensation will not be reduced on account of misconduct.

[155] As a result of the foregoing considerations, the gross amount of compensation to be ordered, subject to the compensation cap discussed below, is set out in the following table:

Compensation – how does the compensation cap apply?

[156] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[157] The amount worked out under section 392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.

[158] The Applicant was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal. Although Mr Simon was advised by the Respondent on 18 December 2018 that his personal leave accrual was shortly to be exhausted that did not happen prior to his dismissal on 21 December 2018.

[159] Relevant to the compensation cap established by s.392(5) of the Act,

•  I find for the purposes of ss.392(5)(a) and 392(6) that the total amount of the remuneration Mr Simon was entitled to receive in the 26 weeks immediately before the dismissal was $45,182 as payment of salary and that in addition he was entitled to a further payment of $4292 on his behalf to his superannuation fund. Those two amounts together total $49,474. No consideration has been included within that amount to the private use value either of the motor vehicle nor the mobile telephone provided to Mr Simon as part of his contract of employment, for the reason that there is no evidence before me about the valuation of those items.

•  I note for the purposes of s.392(5)(b) that the high income threshold immediately before the dismissal was $145,400. Half of that amount is $72,700.

[160] Given that s.392(5) provides that the amount of compensation ordered by the Commission must not exceed the lesser of the two amounts above, the compensation cap in Mr Simon’s case is $49,474. The amount to be ordered is lower than the compensation cap.

CONCLUSION AND ORDERS

[161] In accordance with this decision, an order will be issued at the same time as this decision to the effect that the NGS Group must pay $36,280 gross, less taxation as required by law to Mr Simon in lieu of reinstatement. The order to be issued by me will require that the total amount will be divided between a payment to be made directly to Mr Simon and the balance will be paid to his superannuation fund on his behalf. As a result, of the total amount $33,133, less taxation, is to be paid directly to Mr Simon, and $3,147 is to be paid to his superannuation account. The order will require that one-third of these amounts will be payable within 14 days of the decision; one-third within 30 days; and the balance of one-third, within 45 days.

COMMISSIONER

Appearances:

Mr G. Lake of Counsel, instructed by McDonald Murholme.

Ms J. Zhou of Counsel, instructed by Henty’s Lawyers

Hearing details:

2019.

Melbourne:

8 April.

Final written submissions:

Respondent: 12 April 2019.

Printed by authority of the Commonwealth Government Printer

<PR708448>

 1   Employer Response Form, item 1.7.

 2   Exhibit A1, Witness Statement John Simon, dated 15 March 2019, [5].

 3   Ibid, [15].

 4   Ibid, [15], [25].

 5   Ibid, Attachment JS – 4.

 6   Exhibit R1, Witness Statement of Rohan Welsh, dated 8 March 2019, [16] – [17]; Exhibit A1, [17] – [18].

 7   Exhibit A1, [16] – [17].

 8   See Exhibit A1 [21]; Exhibit R2, Witness Statement of Allan Hineman, dated 8 March 2019, [22].

 9   Exhibit A1, [21].

 10   Exhibit R2, [27].

 11   Exhibit A1, [32].

 12   Ibid, Attachment JS – 5.

 13   Ibid, [33].

 14   Exhibit R2, [41].

 15   Exhibit A1, [41]; Exhibit R2, [41].

 16   Transcript, PN 1024.

 17   Ibid, PN 1026.

 18   Ibid, PN 1031 – 1038.

 19   Ibid, PN 1039 – 1047.

 20   “FOB”, an abbreviation for Free on Board duties.

 21   Exhibit A1, [46].

 22   Exhibit R2, [47].

 23   Transcript, PN 201 – 203.

 24   Exhibit A1, [43].

 25   See Exhibit A1, [45]; Exhibit R2, [46].

 26   Exhibit A1, [47](d).

 27   Exhibit R2, [49].

 28   Ibid, [36].

 29   Ibid, [37].

 30   Exhibit A1, Attachment JS-10; [28] – [29].

 31   Exhibit A1, [17].

 32   Ibid, [13].

 33   Exhibit R2; [16].

 34   Exhibit A1, [14], [28]; Exhibit R2, [15].

 35   Exhibit A1, [20].

 36   Ibid, [24].

 37   Exhibit R2, [40].

 38   Exhibit A1, [21]; Exhibit R2, [26] – [27].

 39   Exhibit A1, [22].

 40   Exhibit R2, [23].

 41   Exhibit A1, [27].

 42   Exhibit R2, [30] – [31].

 43   Ibid.

 44   Exhibit A1, [29].

 45   Ibid, Attachment JS – 10, [32].

 46   Ibid, [30].

 47   Ibid, [29].

 48   Exhibit R2, [28]

 49   Exhibit A1, [31].

 50   Ibid.

 51   Transcript, PN 194 – 197.

 52   Ibid, PN 401.

 53   Exhibit R1.

 54   Exhibit A1.

 55   Exhibit R1, [22].

 56   Transcript, PN 914 – 938.

 57   Exhibit R2, [33].

 58   Ibid, [38].

 59   Exhibit A1, [38] – [39].

 60   Transcript, PN 952.

 61   Ibid, PN 977 - 980.

 62   Ibid, PN 978.

 63   Ibid, PN 977, 980.

 64   Ibid, PN 981.

 65   Exhibit A1, Attachment JS – 11.

 66   Transcript, PN 953.

 67   Exhibit A1, [40].

 68   Exhibit R2, [40].

 69   Exhibit A1, [45].

 70   Exhibit R2, [46].

 71   Transcript, PN 222 – 224.

 72   Exhibit A1, [46]; Exhibit R2, [48].

 73   Exhibit A1, [47](d).

 74   Transcript, PN 1114.

 75   Exhibit A2, Applicant's Outline of Submissions.

 76   Ibid.

 77   (2007) 233 CLR 115.

 78   Ibid at [44] – [49]; see also Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [116] – [130].

 79   See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [32] – [41] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1, [126].

 80   See Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 at 698,699-700, 701-702.

 81   Ibid.

 82   Ibid, [6.24] citing Rigby v Ferodo Ltd [1987] IRLR 516; [1988] ICR 29. See also Marriot v Oxford & District Co-Operative Sciety Ltd (No 2) [1970] 1 QB 186, [191].

 83   See for example Rigby v Feredo Ltd [1988] ICR 29 and Brockton Holdings No V Pty Ltd v Kara Kar Holding Pty Ltd (1994) 57 IR 288.

 84   See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [41] – [46], [68] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1, [126].

 85   Exhibit A1, [46].

 86   Exhibit R2, [44] – [45].

 87   Exhibit A1, [39]; Exhibit R2, Transcript, PN 879 – 891.

 88   Mark Irving QC, Contract of Employment (LexisNexis Butterworths, 2012), [6.21].

 89   Exhibit A1, Attachment JS – 10.

 90   Ibid, Attachment JS – 12.

 91   Ibid, Attachment JS – 13.

 92   See Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 450 – 453, 461 – 463, 465 – 467; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 47 – 428; Visscher v Giudice (2009) 239 CLR 361, [53] – [55].

 93   Exhibit A1, Attachment JS-13.

 94   Ibid, Attachment JS-16.

 95   Ibid, [59] – [60]; Exhibit R3, Respondent Submissions Jurisdictional Objection, 8 March 2018, [34].

 96   Exhibit A1, [61] – [62]; Attachment JS-15.

 97   Ibid, Attachment JS-6.

 98   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

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

 100   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 101   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 102   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 103   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 104   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 105   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 106   Exhibit A1, [58]; Attachment JS-14.

 107   Ibid, [21].

 108   Ibid, [30].

 109   Ibid, [47(e)].

 110   Ibid, [35] – [37].

 111   Ibid, [60].

 112   Sexton v Pacific National (ACT) Pty Ltd, (2003) (unreported AIRC), Print PR931440.

 113   ALH Group Pty Ltd trading as the Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith and others v Moore Paragon Australia Ltd [2002] AIRC 317, [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 114   Transcript, PN 297.

 115   Ibid, PN 1290.

 116   Ibid, PN 171.

 117   Exhibit R4, Further Witness Statement of Rohan Welsh, [2].

 118   Ibid, Attachment RW-3.

 119   Ibid.

 120   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 121   Transcript, PN 1361.

 122   Ibid, PN 1353.

 123   Exhibit A1, [41].

 124   Ibid, Attachment JS-11.

 125   Exhibit A1, [64].

 126   Ibid, [65].

 127   Ibid, [66].

 128   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446, [32], cited with approval in Haigh v Bradken Resources [2014] FWCFB 236, (2014) 240 IR 366 [11].

 129   Sexton v Pacific National (ACT) Pty Ltd, (2003) (unreported AIRC), Print PR931440.

 130   (1998) 88 IR 21.

 131   [2013] FWCFB 431.

 132   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

 133   Ellawala v Australian Postal Corporation [2000] AIRC 1151, [34].

 134   Ibid.

 135   Enhance Systems Pty Ltd v Cox [2001] AIRC 1138, [39].

 136   Bowden v Ottrey Homes Ibid, at [54].

 137   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

 138  

 139