| [2019] FWC 6364 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Carley Jack
v
Sigma Healthcare T/A Sigma Healthcare
(U2019/1119)
COMMISSIONER CIRKOVIC |
MELBOURNE, 13 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – inherent requirements of the role – application dismissed.
[1] On 4 February 2019, Ms Carly Jack (the Applicant) made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Ms Jack was employed by Sigma Company Limited trading as Sigma Healthcare (the Respondent) as a store person from 22 January 2013 until her employment was terminated on 8 February 2019.
[2] Ms Jack commenced personal leave from the workplace on 6 October 2017 and remained on personal leave until the termination of her employment. Ms Jack received a termination letter dated 18 January 2019 advising her that her employment had been terminated as she was unable to perform the inherent requirements of her pre-injury role. 1
[3] Ms Jack submitted that the termination of her employment was unfair and seeks reinstatement. 2
[4] The matter was heard before me on 22 July 2019. Both parties were represented.
[5] Section 396 of the Act requires that I decide four matters before considering the merits of Ms Jack’s application. There is no dispute between the parties, and I am satisfied, of the following matters. Firstly, Ms Jack’s application was made within the 21 day period required by s.394(2) of the Act. Secondly, Ms Jack was a person protected from unfair dismissal, as she had completed the minimum employment period and was covered by the Sigma (Victoria) Enterprise Agreement 2016 (the Agreement) at the time of dismissal. Thirdly, the Respondent is not a small business for the purposes of the Act, and therefore I do not need to consider the Small Business Fair Dismissal Code. Fourthly, Ms Jack’s dismissal was not a case of genuine redundancy.
Background
[6] Ms Jack commenced employment with the Respondent on 22 January 2013 as a Grade 2 Storeperson at the Respondent’s Rowville distribution Centre. The particular centre warehouses pharmaceutical goods. 3 Aside from a period of 1 year where Ms Jack worked in a Grade 4 position,4 she remained employed as a Grade 2 Storeperson at the Respondent’s Rowville distribution centre. Her duties included picking and packing orders, labelling boxes, operating carousel, A-frame and RF gun and stock and general cleaning, and operating forklifts.5 It is not in contest that it is “a busy workplace, there are vehicles back and forth” and “there were physical demands”.6
[7] In October 2017, Ms Jack was injured in a non-work related motor vehicle accident, after which she was under the administration of the Transport Accident Commission (TAC). The Applicant did not return to work following the accident. 7 It is not in contest that in the six months following the accident the Applicant had no capacity to work.8
[8] On 3 May 2018, Ms Jack received a certificate of capacity certified by osteopath Dr Brad Robinson, indicating no capacity for work from 7 May to 7 July 2018. 9
[9] On 4 July 2018, osteopath Dr Robinson certified that Ms Jack had capacity for suitable employment from 8 July to 8 August 2018. 10 Ms Jack spoke with TAC to organise an occupational therapist. She was paid compensation by TAC.
[10] On 27 August 2018, the Applicant met with Ms Lauren Henderson, the Respondent’s ER/HR Business Partner, and Mr Eddy Pasnin, Operations Manager/2IC to the State Distribution Manager, regarding her potential return to work. At the meeting a number of options were discussed, including hours, tasks and “reduced weights to lift”. 11 The Applicant advised Ms Henderson of the medication she was taking at the time. It is not in contest that, at the time, to allow the Applicant to return to work whilst on some or all of the medication would have contravened the Respondent’s “DRUGS AND ALCOHOL – FITNESS FOR WORK Health & Safety Standard”,12 and would have in practice been “unsafe”.13 The Applicant advised Ms Henderson that she would attend her doctor to ask if there could be a change to her medication such as to mitigate their effects.14
[11] Following the meeting of 27 August 2018, Ms Jack emailed Ms Henderson two letters. The first, dated 28 June 2018 and written by physiotherapist Mark Eibl, indicated:
“I expect Carley [Jack] to be able to return to an amount of work, albeit lighter duties and alternative days.
Work restrictions would include:
• Heavy lifting, away from the body or overhead
• Prolonged sitting in a slumped posture
… [she is] in good stead for a return to work program.” 15
[12] The second letter, dated 27 June 2018 and written by osteopath Dr Robinson indicated:
“As such, I believe that she would be capable of returning to work on some basis, possibly doing reduced hours. Her main areas of soreness are her lower back and shoulders/neck region” 16
[13] On 5 September 2018, Ms Jack provided the Respondent a certificate of capacity certified by osteopath Dr Robinson. The certificate indicated that Ms Jack had “capacity for suitable employment” from 09 September to 9 October 2018. Osteopath Dr Robinson certified that Ms Jack could do all physical functions with modification; that memory and judgment were not affected; but attention/concentration was. 17 Relevantly, the certificate included that Ms Jack could “lift 5kg from squat to stand position holding to waist height. Can lift 1kg above head but not at full arms length. Not able to hold arms up for extended periods.” (sic)
[14] On 17 September 2018, Ms Henderson wrote to the Applicant’s treating practitioner Dr Hany Daoud, requesting an analysis of the Applicant’s health and a future prognosis. 18 Attached to that letter were copies of “manual task analyses” for “various jobs that Carley would undertake as part of her role”.19 Relevantly, these analyses included load bearing tasks involving weights from 5kg to 16kg. Ms Henderson did not receive a response from Dr Daoud.20
[15] On 21 September 2018 Ms Henderson forwarded the same email to Mr Tori Briggs, the Applicant’s case manager at Rehabilitation Services Pty Limited. 21
[16] On 12 October 2018, Ms Jack provided the Respondent a certificate of capacity certified by osteopath Dr Robinson. 22 The certificate indicated that Ms Jack had “capacity for suitable employment”, with the same status and comments as to physical and mental function as provided in the certificate of 5 September 2018 at [13] above.
[17] On 16 November 2018, the Respondent wrote to Ms Jack in relation to her capacity to return to work. The Respondent directed Ms Jack to “provide us with an approximate date when you will be able to resume your pre-injury duties based upon medical evidence.” 23 The same day the Respondent wrote to the Applicant’s treating practitioner, Dr Daoud, in similar terms requesting that he provide “us with an approximate date on which she will be able to resume her pre-injury employment. Your response may be provided with the next medical certificate.”24 Ms Jack’s pre-injury position description was included in the letter to Dr Daoud.
[18] On 6 December 2018, Ms Jack provided the Respondent a certificate of capacity certified by osteopath Dr Robinson, again in the same terms as the certificate of 5 September 2018 at [13] above. 25
[19] On14 December 2018, Dr Daoud replied to the Respondent’s letter of 16 November 2018, as follows:
“I saw Carly Jack on Tuesday, 4th of December 2018, She attended with Tori Briggs, an Occupational Therapist, from Rehabilitation services. We had a long discussion about her current condition.
Her depression and anxiety showed mild improvement compared to before with the new antidepressant. Her mood is better, but still not able to sleep well and gets pain on and off.
I believes She can not perform any duties at that stage, I have increased her antidepressant dose, hopefully that will improve her depression.
I have, also, arranged a referral to a Psychiatrist for further assessment and for a clear ongoing management plan.
Eventually, I will catch up again with her after two weeks from the last consultation and keep up informed about any update.
Please do not hesitate to contact for any inquiries.” 26 (sic)(underline emphasis added)
[20] On 7 January 2019, the Respondent wrote to the Applicant in unequivocal terms stating that the Respondent was “seriously considering terminating [her] employment on the basis of your inability to perform the inherent requirements of the position”. 27 Further, the Applicant was invited in that correspondence to arrange a meeting with Ms Henderson to provide further information, including medical information, before the Respondent concluded its review of the Applicant’s employment.28
[21] On 16 January 2019, prior to the Applicant’s scheduled meeting with Ms Henderson, the Applicant provided Ms Henderson with a further certificate of capacity signed by her psychiatrist, Dr Mathur. 29 Dr Mathur indicated that the Applicant had no capacity to return to work from 16 January 2019 to 15 February 2019. The psychiatrist left blank the part of the certificate relating to an estimated timeframe for return to work.30 The Certificate of Capacity stated the clinical diagnosis as ‘major depressive disorder with anxiety with PTSD” and indicated that the Applicant’s attention and concentration were affected. The “treatment plan” on the certificate stated the following:
“ANTIDEPRESSNAT AND ANTI- ANXIETY MEDICATION,
FOLLOW WITH PSYCHAITRIST, GP AND PSYCHOLOGIST AT REGULAR INTERVAL” (sic)
[22] The Applicant also provided a letter from Dr Daoud, dated 14 January 2019, 31 which stated as follows:
“This is to Certify that Miss Carley Jack attended the clinic on 14 January 2019.
She started to a psychiatrist recently who diagnosed her with major depressive disorder with PTSD, and had done some changes to her medications and recommended to see her fortnightly for 2-3 months and reassess after that.
As her current medications can cause drowsiness, He recommended not to work at the moment till the new assessment.” (sic)(underline evidence added)
[23] On the afternoon of 16 January 2019, the Applicant participated in a teleconference with Ms Henderson and Ms Peluso, Wellbeing and Injury Management Advisor of the Respondent. During that teleconference the Applicant stated to the effect that:
• she was struggling with her anxiety;
• she didn’t know if she could cope with being around this many people even though she knew everyone;
• she may feel on edge, under scrutiny;
• this would set off her anxiety and she can’t control it;
• all her practitioners are concerned about this. 32
[24] During the teleconference the Applicant confirmed that she agreed with Dr Daoud’s assessment that “she cannot perform any duties at that stage”. The Respondent invited the Applicant to provide further information in relation to her ongoing employment to which the Applicant stated, “I don’t want to prolong the inevitable … I can’t put mine or anyone else’s lives at risk”. 33
[25] On 18 January 2019, the Applicant participated in a teleconference with Ms Henderson and Mr Pasnin. It was communicated to her that the Respondent could no longer keep “her job open”. 34 The Applicant stated during that conversation “this will give me the time I need to concentrate on getting better.”35 The same day, the Respondent sent Ms Jack a letter confirming the termination of her employment, effective upon the expiration of her notice period on 8 February 2019, on the grounds of her inability to perform the inherent requirements of her role, and that there were no other suitable positions available to her within the business.36
[26] On or about 6 March 2019, the Applicant commenced employment with Octopus Hospitality (Octopus), working 4 hours per day. Her duties principally included answering telephone calls, paperwork, filing and speaking with clients. It is not in contest that the role does not have the physical demands of being a storeperson. 37 The Applicant worked for Octopus for a total of 7 days between the dates of 6 - 22 March after which she was medically unfit for work and required two major surgeries.38
Legal Principles
[27] In Crozier v Australian Industrial Relations Commission (Crozier), 39 the Full Court of the Federal Court endorsed the approach taken by the Full Bench of the Australian Industrial Relations Commission to determining whether a valid reason exists in the context of a capacity case. In Crozier, the Full Court of the Federal Court held:
“The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that "the main focus of his position was to generate new business"; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative (at 150 & 152-153). In making these findings it acted within jurisdiction, and we detect no jurisdictional error in its approach.” 40
[28] In CSL Limited v Papaioannou (CSL), 41 applied in Hyde v Serco Australia Pty Limited (Serco),42 a Full Bench of the Commission concluded that:
“In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.” 43
[29] In Serco, 44 a Full Bench of the Commission adopted the approach taken in Jetstar Airways Pty Limited v Neeteson-Lemkes (Jetstar)45 on capacity at the time of dismissal, and said:
“As noted in Jetstar, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Applying this principle to the matter before us, Dr White’s evidence was correctly excluded from the assessment of whether there was a valid reason for Mr Hyde’s dismissal because it was clearly founded upon a factual situation which came into existence well after the date of Mr Hyde’s dismissal. Dr White examined Mr Hyde on 10 November 2017, some two months after his dismissal, and his evidence concerned Mr Hyde’s capacity as at 10 November 2017; not his capacity as at the date of his dismissal. The validity of that part of Serco’s reason for dismissal which concerned Mr Hyde’s future capacity to perform his duties must be assessed by reference to his state of health, and the expert opinions expressed as to his state of health, as they were at the time of his dismissal.” 46
[30] In Jetstar, the Full Bench said:
“We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.” 47
[31] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387. I will address each of these matters in turn below.
Section 387(a) – Valid reason
[33] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is “sound, defensible or well-founded’ and not ‘capricious, fanciful, spiteful or prejudiced”. 48
[32] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 49 The question the Commission must address is whether there was a valid reason for the dismissal related to the employees’ capacity or conduct (including its effect on the safety and welfare of other employees).50
Submissions of the parties
[33] The Respondent submits that at the time of termination and in the then-foreseeable future, Ms Jack was unable to perform the inherent requirements of the role for which she was engaged. 51 That is, she was unable to perform her pre-injury duties due to her physical and mental conditions. The Respondent states that it made this assessment after a lengthy absence from work of approximately 15 months, based on the medical evidence of Dr Daoud, osteopath Dr Robinson and Dr Mathur. Further, the Respondent points to the statements of the Applicant referred to at [25] above. The Respondent submits that therefore there was a valid reason for termination.
[34] The Applicant disputes the Respondent’s assessment. The Applicant says that there was no valid reason for termination because:
• there was no relevant evidence to support a finding of inability to carry out the inherent requirements of the pre-injury position, that being a Grade 2 storeperson, “either at the time or in the foreseeable future”; 52
• the termination was likely made due to impending redundancies; 53
• it is premature to assume that the employee will not recover, where there is no evidence of an intractable condition; 54 and
• for many people with a psychiatric diagnosis, such conditions can be well managed and are “not inconsistent with participation in the workforce”. 55
Consideration
[35] My assessment as to the Applicant s capacity to perform the inherent requirements of her role is based on the written material in evidence, supplemented at hearing and the oral submissions. The medical evidence is confined to written material as the medical practitioners were not called to give evidence. In coming to my conclusion, I have adopted the approach of the Full Bench of the Commission in Jetstar, as referred to at [30] above.
[36] There is no dispute that at the time of termination, Ms Jack was unable to perform the inherent requirements of her role of Storeperson Grade 2. 56 On the basis of the material before me, I am satisfied that the Applicant suffered the alleged physical and mental incapacity.
[37] The parties are in dispute as to the state of the evidence as to the Applicant’s future capacity to perform the inherent requirements of her role.
[38] I have examined the medical evidence before me as set out at paragraphs [8]-[22]. In his letter of 14 January 2019, Dr Daoud expressed the view that “[Dr Mathur] recommended not to work at the moment till the new assessment” and that Dr Mathur’s recommendation was to “see her fortnightly for 2-3 months and reassess after that.” Further, at the time of termination, whilst the Applicant’s physical capacity was improving, the medical evidence of her mental state indicates that a return to work was not foreseeable.
[39] On the basis of the evidence before me, the Respondent’s view at the time of dismissal that the Applicant would not be able to return to work her fulfil duties as a Storeperson Grade 2 was not contrary to any medical opinion in existence at or about that time. Dr Mathur’s recommendation, conveyed in Dr Daoud’s letter of 14 January 2019, that Ms Jack be reviewed again in 2-3 months, was not a medical opinion that the Applicant would be fit for work in the future. At best, it was expressing an opinion that if circumstances changed, the Applicant may become fit for work at some point in the future.
[40] On the evidence before me, the Applicant’s incapacity to perform the inherent requirements of the role was longstanding, being well over 12 months; and ought to be viewed in light of the absence of medical evidence indicating a foreseeable return to work.
[41] The Applicant concedes that the Respondent considered modification of her duties such as to accommodate her medical condition but that they would not be able to modify the environment “being high paced with forklifts and machinery in the area which require high levels of concentration and awareness.” 57 I am satisfied that no adjustment could be made to the Applicant’s role to accommodate her mental incapacity.
[42] In coming to my conclusion, I have also taken into account the Applicant’s submission that I should disregard the Applicant’s own views at the time of termination as to the state of her health and her prospects of returning to work, as she was “the most unreliable witness to her capacity at that time, as she was affected by the change in medication”. 58 I am satisfied that, irrespective of the Applicant’s views conveyed at the time of termination, the Respondent had a valid reason for termination based upon the medical evidence discussed at paragraphs [8]-[22].
[43] On the basis of the above, I have formed the view that the Respondent had a valid reason to terminate the Applicant’s employment.
Section 387(b) – Notification of reason for dismissal
[69] The letter of termination dated 18 January 2019 states that Ms Jack was terminated because she was “unable to perform the inherent requirements of [her] pre-injury/illness position and will be unable to do so for the foreseeable future. It was also determined that unfortunately there are no other suitable positions available for you within the business.” 59
[44] I find that Ms Jack was notified of the reason for dismissal before her dismissal.
Section 387(c) – Opportunity to respond
[45] The Respondent’s letter dated 7 January 2019, and received by the Applicant on 8 January 2019, clearly outlined that it was “seriously considering termination”; invited further opportunity for the provision of medical or other information; and invited a meeting on 11 January 2019. 60 On 10 January 2019 Ms Jack emailed Ms Henderson asking additional questions which were answered by Ms Henderson in a telephone conversation.61 On 11 January 2019, Ms Jack emailed Ms Henderson asking for more time to get additional medical reports, which Ms Henderson obliged.62 On 15 January 2019 Ms Jack proposed that the meeting be held the next day. On 16 January 2019, prior to the meeting, Ms Jack provided the certificate of capacity signed by Dr Mathur, described at [21] above. Later, Ms Jack had a teleconference with Ms Henderson and Ms Peluso. They discussed the Applicant’s condition and the medical reports, and Ms Jack was asked whether there was anything else she wished the Respondent to consider.63 On 18 January 2019, Ms Jack had a teleconference with Ms Henderson and Mr Pasnin, during which Ms Jack was advised of, and acknowledged the Respondent’s decision to terminate her employment.64
[46] I am satisfied on the material before me that the Applicant was given a reasonable opportunity to respond.
Section 387(d) – Unreasonable refusal by the employer to allow a support person
[47] There was no unreasonable refusal to allow a support person.
Section 387(e) – Warning about unsatisfactory performance before dismissal
[48] This is not relevant.
Section 387(f)(g) - Size of enterprise and absence of dedicated human resource management specialists/expertise likely to impact on procedures followed
[76] This is a large employer with dedicated human resource management specialists.
Section 387(h) – Other relevant matters
[49] I have taken into account all the submissions put by both parties as to other relevant matters, including those of the Applicant that:
• the employer “did not treat the Applicant in a good and considerate manner and that she was most certainly denied a fair go”; 65
• the Applicant has suffered substantial financial loss, causing personal hardship; 66
• but for the Respondent’s decision, the Applicant may have received the benefit of a redundancy package had she been part of the redundancies that later transpired in the Respondent’s business; 67
• the Applicant had, effectively, been “written off” due to mental illness; 68 and
• the Applicant has served the Respondent for a significant length, of nearly 6 years. 69
[50] I have also taken into account the Respondent’s submissions that:
• in considering the harshness of a termination decision, the Respondent took into account that the Applicant was receiving compensation as a result of the accident and her absence from work, and would continue to do so; 70 and
• the “fair go” principle applied to the Respondent means that weight should be given to the lengthy period that the Respondent kept the Applicant’s position open, and the procedurally fair process conducted by the Respondent.
[51] The Applicant also made a submission that the real reason behind the termination was the Respondent’s interest in avoiding a potential future redundancy obligation. 71 The Respondent denies the allegation and Ms Henderson gives evidence that she first became aware of potential redundancies in “the week of 18 February”.72 Having considered the material before me, I am satisfied that the Respondent acted in good faith and was not motivated by a desire to avoid any potential future redundancy obligations.
[52] The Applicant’s representative urged the Commission to take the approach of another member of the Commission in V v Ambulance Victoria (V). 73 The Applicant further submits that a consideration before me is the “community aim … to assist people who have been the subject of illness or injury to return to work if that is possible”. 74 I am not persuaded that the evidence before me supports the Applicant’s submission. Unlike the facts of V, there is no dispute in the case before me that the Applicant was unfit for work at the time of termination.
[53] Whilst I have sympathy for the Applicant’s situation, which has clearly been the source of great distress to her, and accepting that a relevant consideration is the community interest in assisting the rehabilitation and return to work of seriously injured or ill individuals, this must be balanced with the actions of the Respondent, which kept the Applicant’s position open for a lengthy period and conducted a procedurally fair process.
Conclusion
[54] On the material before me, it remains that:
• at the time of termination, the Applicant could not perform the inherent requirements of her substantive role;
• the Respondent kept the Applicant’s role open for a lengthy period of over 12 months; and
• the state of the medical evidence at the time of termination was such that the Respondent had a valid reason for termination.
[55] Having considered each of the matters specified in s.387 of the Act, I find that the termination of Ms Jack was not harsh, unjust or unreasonable. An order dismissing the application has been issued separately.
COMMISSIONER
Appearances:
Mr A Dircks for the Applicant;
Mr D Murray of Australian Industry Group, for the Respondent.
Hearing details:
22 July 2019
Final written submissions:
Applicant’s Outline of Submissions dated 1 April 2019
Respondent’s Outline of Submissions dated 23 April 2019
Printed by authority of the Commonwealth Government Printer
<PR712342>
1 Attachment 18 to Statement of Lauren Henderson dated 10 April 2019.
2 Applicant’s Outline of Submissions dated 1 April 2019.
3 Ibid.
4 Statement of Carley Jack dated 1 April 2019 [11].
5 Respondent’s Outline of Submissions dated 23 April 2019 [3].
6 Transcript PN88.
7 Transcript PN100.
8 Statement of Carley Jack dated 1 April 2019 [6].
9 Attachment CJ6 to Statement of Carley Jack dated 1 April 2019.
10 Attachment CJ9 to Statement of Carley Jack dated 1 April 2019.
11 Statement of Carley Jack dated 1 April 2019 [26].
12 See attachment 1 to Statement of Lauren Henderson dated 10 April 2019.
13 Transcript PN122.
14 Transcript PN124-132.
15 Attachment 2 to Statement of Lauren Henderson dated 10 April 2019.
16 Attachment 3 to Statement of Lauren Henderson dated 10 April 2019.
17 Attachment 4 to Statement of Lauren Henderson dated 10 April 2019.
18 Attachment 5 to Statement of Lauren Henderson dated 10 April 2019.
19 See attachment 12 to Statement of Lauren Henderson dated 10 April 2019, referred to at attachment 5 of Statement of Lauren Henderson dated 10 April 2019.
20 Transcript PN302.
21 Statement of Lauren Henderson dated 10 April 2019 [19].
22 Attachment 7 to Statement of Lauren Henderson dated 10 April 2019.
23 Attachment 9 to Statement of Lauren Henderson dated 10 April 2019.
24 Attachment 10 to Statement of Lauren Henderson dated 10 April 2019.
25 Attachment 11 to Statement of Lauren Henderson dated 10 April 2019.
26 Attachment 12 to Statement of Lauren Henderson dated 10 April 2019.
27 Attachment 13 to Statement of Lauren Henderson dated 10 April 2019.
28 Ibid.
29 Attachment 16 to Statement of Lauren Henderson dated 10 April 2019.
30 Respondent’s Outline of Submissions dated 23 April 2019.
31 Attachment 16 to Statement of Lauren Henderson dated 10 April 2019.
32 Statement of Lauren Henderson dated 10 April 2019 [40], attachment 17 to Statement of Lauren Henderson dated 10 April 2019.
33 Transcript PN175, 177.
34 Statement of Lauren Henderson dated 10 April 2019 [46].
35 Statement of Lauren Henderson dated 10 April 2019 [46].
36 Attachment 18 to Statement of Lauren Henderson dated 10 April 2019 [46].
37 Transcript PN193.
38 Transcript PN199.
39 [2001] FCA 1031.
40 Ibid [14].
42 [2018] FWCFB 3989, [62].
43 [2018] FWCFB 1005, [77].
46 [2018] FWCFB 3989 [64].
47 [2013] FWCFB 9075 [53].
48 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
49 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
50 Ibid.
51 Respondent’s Outline of Submissions dated 23 April 2019.
52 Applicant’s Outline of Submissions dated 1 April 2019 [4], [40], [43].
53 Ibid [5].
54 Ibid [41].
55 Ibid [42].
56 Transcript PN 638-640; PN160-166; PN170-186.
57 Transcript PN125-129; attachment CJ 10 to Statement of Carley Jack dated 1 April 2019.
58 Transcript PN642.
59 Attachment 18 to Statement of Lauren Henderson dated 10 April 2019.
60 Attachment 13 to Statement of Lauren Henderson dated 10 April 2019.
61 Statement of Lauren Henderson dated 10 April 2019 [33].
62 Attachment 14 to Statement of Lauren Henderson dated 10 April 2019.
63 Statement of Lauren Henderson dated 10 April 2019 [39]-[45].
64 Statement of Lauren Henderson dated 10 April 2019 [46].
65 Applicant’s Outline of Submissions dated 1 April 2019 [72].
66 Ibid [76], 78].
67 Ibid [76].
68 Ibid [75].
69 Ibid [78].
70 Respondent’s Outline of Submissions dated 23 April 2019 [64].
71 Applicant’s Outline of Submissions dated 1 April 2019 [5].
72 Transcript PN372.
74 Ibid [46].