[2021] FWC 2802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Nasr
v
Mondelez Australia Pty Ltd
(U2021/569)


DEPUTY PRESIDENT YOUNG	MELBOURNE, 1 JULY 2021

Application for an unfair dismissal remedy – no dismissal – application dismissed.

[1] On 21 January 2021, Mr Michael Nasr made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Mondelez Australia Pty Ltd (Mondelez). Mr Nasr seeks reinstatement.

[2] Mondelez submits that Mr Nasr’s employment with the Respondent ended through the effluxion of time upon the expiry of Mr Nasr’s maximum term contract. 1 Accordingly, it submits that Mr Nasr was not dismissed from his employment with Mondelez within the meaning of section 386(1) of the Act.2 In the alternative, Mondelez submits that Mr Nasr was employed under a contract for a specified period of time within the meaning of section 386(2)(a) of the Act and his employment terminated at the end of that period. Therefore, in accordance with section 386(2)(a) of the Act he was not dismissed.3 In the further alternative, Mondelez submits that if Mr Nasr was dismissed, his dismissal was not harsh, unjust or unreasonable.4

Hearing and Witnesses

[3] Mr Nasr’s application was the subject of a hearing before me on 6 May 2021.

[4] Pursuant to section 596 of the Act, Mr Barry Terzic of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union appeared on behalf of Mr Nasr. Mr Rick Catanzariti of DLA Piper appeared on behalf of Mondelez.

[5] Mr Nasr gave evidence on his own behalf.

[6] The following witnesses gave evidence on behalf of Mondelez:

• Mr Anjum Shahzad – Area Manger Ground Floor Enrobing Starch, Mondelez.

• Mr Sher Mansoor Khan – Human Resources Manager, Mondelez.

[7] In accordance with directions issued by the Commission, Mondelez filed its outline of arguments, witness statements of Mr Shahzad and Mr Khan and supporting material on 26 March 2021. Mr Nasr filed submissions and a witness statement on 13 April 2021. Mondelez filed its outline of arguments in rely and a supplementary statement of Mr Shahzad on 20 April 2021.

Dismissal

[8] I have concluded that employment relationship between Mr Nasr and Mondelez came to an end by the effluxion of time and Mr Nasr’s employment was therefore not terminated on the employer’s initiative. Accordingly, I have concluded that Mr Nasr was not dismissed within the meaning of section 386(1)(a) of the Act. These are my reason for that conclusion.

Factual settings and findings

Background

[9] Mondelez manufactures and sells chocolate and other confectionary items across Australia and New Zealand. Mondelez has five manufacturing plants in Australia, including plants at Ringwood and Scoresby in Victoria. 5 Mondelez employs approximately 125 employees in the production area of the Scoresby plant, including employees engaged on maximum term contracts.6 The site operates 24 hours a day, with employees working one of three eight hours shifts.7

[10] Mr Nasr was born in Egypt 8 and migrated to Australia in 2009.9 Arabic is his first language.10 Mr Nasr was employed by Mondelez at the Scoresby plant from 2 July 2018 until 31 December 2020 in the role of Confectioner. Prior to 2 July 2018 Mr Nasr was employed by a labour hire firm (Programmed) as a casual employee and placed at Mondelez’ Scoresby plant for a number of years.11

Nasr’s contracts of employment

[11] It is uncontested that Mr Nasr’s was employed with Mondelez from 2 July 2018 to 31 December 2020 pursuant to eight maximum term contracts as follows:

1. a 3-month maximum term contract from 2 July 2018 to 7 October 2018 (First Contract);

2. a 3-month maximum term contract from 8 October 2018 to 25 November 2018 (Second Contract);

3. a 12-month maximum term contract from 26 November 2018 to 22 November 2019 (Third Contract);

4. a 3-month maximum term contract from 23 November 2019 to 22 February 2020 (Fourth Contract);

5. a 3-month maximum term contract from 23 February 2020 to 23 May 2020 (Fifth Contract);

6. a 1-month maximum term contract from 24 May 2020 to 23 June 2020 (Sixth Contract);

7. a 3-month maximum term contract from 24 June 2020 to 24 September 2020 (Seventh Contract);

8. a 3-month maximum term contract from 25 September 2020 to 31 December 2020 (Eighth Contract), (collectively, the Contracts).

[12] The expiry date was clearly articulated in each of the Contracts 12 and it is not contended that there was any ambiguity about the relevant expiry dates, including the expiry date of the Eighth Contract.13 The First and the Second Contract expressly stated that Mr Nasr’s employment was “temporary for the maximum period” specified in the contract and was offered “on the basis that there can be no guarantee of further employment beyond that period.”14 In relation to termination, the First and Second Contract relevantly provided as follows:

“This is a Maximum Term contract and your employment will terminate at the end of the period outlined on the first page of this contract (the “Maximum Term”).

Either party may terminate this contract prior to the Maximum Term by providing notice in accordance with the Enterprise Agreement.” (Termination Provision). 15

[13] The Third to Eighth Contract each provided that it extended Mr Nasr’s “temporary employment” for the maximum period specified in the contract and also that the “contract is being extended on the basis that there is no guarantee of future employment beyond the mentioned period.” 16 They further provided that “All other terms and conditions of employment remain as per your temporary employment contract.”17 Under cross examination Mr Nasr agreed that he read18 and signed19 each of the Contracts, that he understood that each of the Contracts was for a fixed period of time,20 and that there was no guarantee of employment after the date on which the Contracts expired.21

[14] Accordingly, I find that the terms of the Eighth Contract were clear and unambiguous and clearly stated that it would end on 31 December 2020. It is uncontested, and I find, that the Third to Eighth Contract contained the Termination Provision as a term of the contract. I find that Mr Nasr read each of the Contracts, including the Eighth Contract, and understood that each of the Contracts, including the Eighth Contract, was for a fixed period of time and would expire on the date specified in the Contracts. I also find that Mr Nasr understood when he entered into each of the Contracts, including the Eighth Contract, that there was no guarantee of employment after the expiry date in the contract.

Enterprise Agreements

[15] Mr Nasr’s employment was also governed by the Mondelez Australia Pty Ltd Ringwood & Scoresby Confectioners Agreement 2016-2018 (2016 Agreement) and subsequently by the Mondelez Australia Pty Ltd Ringwood & Scoresby Confectioners Agreement 2018 (2018 Agreement) (collectively, Agreements).

[16] Clause 17 of the Agreements, relevantly, provides as follows:

“17. Mondelez Contractors

Employees may be engaged by the company for a period, project, season or job (“Mondelez Contractors” for the purpose of this clause).

…”

[17] It is uncontested that the Applicant was engaged in reliance on clause 17 of the relevant agreement. I address this matter later in this decision.

Roles undertaken by Nasr

[18] Under the First and Second Contract 22 Mr Nasr was engaged to work day shift in the MOGUL department. Under the Third, Fourth, Fifth and Sixth Contract23 Mr Nasr was engaged to work night shift in the Ground Floor Enrobing Starch (GFES) department. Under the Seventh and Eighth Contract24 Mr Nasr was engaged to work day shift in the GFES department. Whilst working in the GFES department Mr Nasr was performing manual packing duties.25

[19] The GFES department produces marshmallow eggs, chocolates and enrobed jelly products. 26

[20] Mr Nasr’s evidence was that around mid-2018 a new line, called GFES was introduced at the Scoresby plant and employees in the MOGUL department were transferred to work in the GFES department. 27 As a result he says that he was offered a contract of employment with Mondelez for a 3 month period to work day shift in the MOGUL department,28 which was then extended for a further 3 months.29 Consistent with the evidence of Mr Nasr, Mr Khan’s evidence was that in 2018 a new line of confectionary products was introduced to the Scoresby plant resulting in a new production line, the GFES line.30 The GFES line had previously been located at the Mondelez site in Dunedin, New Zealand. That site was closed and the GFES line was relocated to Scoresby.31 The GFES line was a separate department of the Scoresby plant.32 Mondelez deployed approximately 30-4033 existing permanent employees from the MOGUL department to work in the GFES line.34 Mondelez also transferred eight employees from the New Zealand site to work on the GFES line.35 As a result, Mondelez had to backfill the roles left vacant by the deployment of employees from the MOGUL department to the GFES department.36 It was anticipated that automation projects would result in operations being able to be resourced by existing employees and for this reason existing employees were redeployed to the GFES line.37 Mr Nasr was offered temporary employment to backfill in the MOGUL department.38 The First Contract was extended on 8 October 2018 to manage ongoing production requirements in the MOGUL department.39

[21] Mr Khan’s evidence was that at the conclusion of the Second Contact the role Mr Nasr had been performing in the MOGUL department was no longer required. 40 Mr Nasr was offered the Third Contract in the GFES department to assist with manual packaging.41 The Third Contract was for a 12 month period due to an automation project on the GFES line that was anticipated to be completed within 12 months.42

[22] Mr Khan’s evidence was that Mr Nasr was offered the Fourth Contract as a result of volume on the GFES line being greater than anticipated. Mr Khan’s evidence was that as the line was new to the Australian plant predicting volumes was difficult and volumes tended to be more volatile than previously estimated. 43 Mr Shahzad’s evidence was that he was involved in the decision to offer Mr Nasr the Fourth to Eighth Contracts and that contracts for periods between 1 to 3 months were offered because of the unpredictable nature of the work at the Scoresby plant.44 In relation to the Fourth Contract Mr Shahzad’s evidence was also that there was an unexpected increase in the volume of work in the GFES department and for this reason Mr Nasr was offered a further contract extension for 3 months.45

[23] As to the Fifth to Eighth Contracts, Mr Khan’s evidence was that these contract extensions were based on work volume or anticipated volume 46 which was not predictable and could only be anticipated on a short term basis. Consequently he said that the Fifth to Eighth Contacts were for periods spanning 1 month to 3 months.47 Mr Shahzad’s evidence was also that the anticipated volume of work in 2020 was not predictable48 and there was a short-term increase in volume “because people were sitting at home” due to COVID-19.49 His further evidence was that a significantly larger than usual number of staff took leave during 2020 due to COVID-19 and Mondelez implemented policies to reduce the number of new staff attending its sites and attempted to restrict staff transfers amongst departments to address concerns around the potential spread of COVID-19. As a result, Mr Nasr was offered the Fifth to Eighth Contracts for periods of 1 and 3 months duration.50

[24] Mr Khan’s evidence was that at the conclusion of the Eighth Contract the volume of product on the GFES line had reduced and additional marshmallows eggs were not required to be produced. The reduction in volume was due to the seasonal nature of marshmallow egg production and improvements in the GFES line operation through technology which meant that overall manning requirements for the department were reduced. 51 Consequently, the work Mr Nasr had been performing was no longer required to be performed.52

[25] The evidence of Mr Khan and Mr Shahzad as to the above matters was not seriously challenged and where Mr Nasr gave evidence about those matters, other than in relation to the number of temporary employees who were not offered further employment (a matter which I address later in this decision) it is broadly consistent with the evidence of Mr Khan and Mr Shahzad. I accept their evidence as to these matters.

Seasonal nature of the work of the GFES department

[26] Mr Shahzad’s evidence was that the GFES department is seasonal. His evidence was that the peak season is from August to December during which time all of the Easter products are produced. At this time the plant operates six days per week. Between January and April volumes are reduced and “it’s very quiet” as there is no upcoming season and the Easter products have been completed. May to August is a further peak season during which time the Christmas products and products for the New Zealand market are produced. At this time the plant operates five to five and one-half days per week. 53 I accept that evidence.

Explanation of the Contracts

[27] As set out above, Mr Shahzad’s evidence was that he was involved in the decision to offer Mr Nasr the Fourth to Eighth Contracts. 54 Mr Shahzad is the Mondelez signatory for the Sixth to Eighth Contracts. Mr Nasr’s evidence was that he dealt with Mr Shahzad in relation to each of these Contracts. In his witness statement Mr Nasr says that on each occasion when Mr Shahzad provided him with a contract he said words to the effect of “Don’t worry, you’re with us now – you’ll be staying”55 (First Representation). Mr Shahzad denied that he said words to this effect56 and said that he did not tell Mr Nasr anything about his future with Mondelez.57 Mr Shahzad’s evidence is that between April 2020 and September 2020 prior to the expiry of each of the relevant Contracts he met with Mr Nasr and explained the reasons for the further offer of employment. Under cross examination he said that this is “a standard process we need to follow.”58 Mr Shahzad’s evidence is that in relation to the Sixth to Eighth Contracts he explained the reasons for the duration of the contract as set out in paragraph [23] above.59 He says that he reiterated that Mr Nasr’s employment would cease at the expiration date contained in the relevant contract.

[28] Mr Nasr’s evidence on this point was, ultimately, that Mr Shahzad did explain the reason for the 1 month duration of the Sixth Contract 60 but did not explain the reasons for the duration of the other contracts.61 I reject that evidence. Under cross examination Mr Nasr’s evidence on this point was difficult. He was somewhat obstructive and unresponsive and repeatedly did not answer the question that was asked of him,62 preferring to provide responses of his own choosing and advancing other matters he considered relevant. Having observed Mr Nasr giving evidence, I am satisfied this was not the result of any language difficulties or the fact that English is not Mr Nasr’s first language. Accordingly, I consider that Mr Nasr’s evidence on this point is unreliable and I prefer the evidence of Mr Shahzad. Accordingly, I find that Mr Shahzad did explain to Mr Nasr the reasons for the duration of the Sixth to Eighth Contracts and did not make the First Representation. Further, Mr Nasr’s evidence was that he knew that there was no guarantee of employment beyond the expiry date of the relevant Contracts.

Cessation of employment

[29] It is uncontested that Mr Nasr’s employment ceased upon the expiry of the Eighth Contract. In his witness statement Mr Nasr says that in mid-December 2020 he met with Mr Shahzad “a couple of times” and Mr Shahzad told him that he would not be offered a further period of employment beyond the expiry of the Eighth Contract. He says that he contested this, asking why he had been selected to go. He says that in reply Mr Shahzad said words to the effect of “I promise you, every day, like before, I will get you work, not much different, but don’t tell anyone and don’t talk to other people.” Mr Nasr says he understood this to mean that Mr Shahzad was implying that he would be able to work at the plant as a casual employee through a labour hire arrangement. 63 In his witness statement Mr Nasr says that he worked his last day at the plant on 18 December 2020. He says that in the afternoon Mr Shahzad called him into the office and said words to the effect of:

“I promise you Michael, you will be coming everyday like before, the same job, but it’s casual – not contract. A very important thing: don’t tell anyone, don’t talk about what’s happened with you at the site. You will be safe to come back to work every day. I’ve sent an email to Programmed for you to start after Christmas.” 64

[30] Mr Nasr’s evidence is that he re-registered with Programmed early in the new year. 65 He was offered casual work at the Scoresby plant on two occasions in January 2021, undertaking cleaning work, which he accepted. He was then offered a further day’s work at the Scoresby plant on a Saturday, again to undertake cleaning work, but declined this work.66

[31] Mr Shahzad’s evidence is that on 14 December 2020 he attended a labour planning meeting for the Scoresby plant. It was determined that the GFES department required two less employees because of the downturn following the completion of the marshmallow egg production. 67 He selected Mr Nasr and one other maximum term contract employee in the GFES department. His evidence was that due to the projected reduction in volume the additional manual packaging line run for marshmallow eggs during peak season was not required from January 2021 and as such the employees performing these tasks were also not required.68

[32] Mr Shahzad says that on 16 December 2020 he met with Mr Nasr in his office and told him that he would not be offered further employment. His evidence is that he told Mr Nasr this was because there was no work for him to perform in the GFES department or anywhere else at the Scoresby plant. He says Mr Nasr asked him if there was any temporary work in the MOGUL department.

[33] Mr Shahzad says that on 17 December 2020 he met with the MOGUL department area manager and inquired if there were any opportunities for Mr Nasr. The area manager told him there were no opportunities because of a downturn in projected volume for the first quarter for 2021. 69

[34] Mr Shahzad says that on 18 December 2020 he met with Mr Nasr and told him that there was no further requirement for additional labour in the MOGUL department and that he would not be offered further employment after 31 December 2020. 70 His evidence is that he did not say words to the effect asserted by Mr Nasr.71 He maintained this denial under cross examination saying he was sure he did not say anything like that to Mr Nasr.72 His evidence was that he did mention to Mr Nasr that if additional work became available this could be accessed through Mondelez’s casual labour agency. 73

[35] For the reasons that follow, I prefer the evidence of Mr Shahzad over that of Mr Nasr as to the events of 16-18 December 2021. Firstly, Mr Shahzad’s recollection of these events was considerably more comprehensive and detailed than that of Mr Nasr’s. Secondly, other than in relation to the statements he allegedly made to Mr Nasr, Mr Shahzad’s evidence as to these events was not seriously challenged under cross examination. However, in response to that which was challenged, he gave clear, firm and credible evidence consistent with his witness statement. Thirdly, under cross examination Mr Nasr’s evidence was that Mr Shahzad did not tell him in mid-December that his contract would not be renewed; 74 rather Mr Shahzad told him on 18 December, “the last day” that his contract would not be renewed.75 This is inconsistent with Mr Nasr’s evidence in his witness statement where he says that he met with Mr Shahzad “a couple of times” in mid-December 2020 and he was told that his contract would not be renewed.76 Fourthly, under cross examination Mr Nasr also said that in the meeting of 18 December 2020 he asked Mr Shahzad him why his contract would not be renewed but others contracts were77 and told Mr Shahzad “You promised me. Don’t worry about it. Every time. Don’t worry. You worry too much Michael. You stay with us.”78 Further, under cross examination Mr Nasr agreed that in the meeting on 18 December 2021 Mr Shahzad told him that there was no temporary work in the MOGUL department. None of these matters are included in Mr Nasr’s witness statement. Accordingly, in a number of respects, Mr Nasr’s evidence under cross examination is inconsistent with that in his witness statement. Fifthly, following Mr Nasr’s cessation of employment he was offered a limited number of shifts at the Scoresby plant through Programmed. This is consistent with Mr Shahzad’s evidence regarding the reduction in work volume, the consequent reduced need for labour and the reason for not offering Mr Nasr further employment. It is also entirely inconsistent with Mr Nasr’s contention that he was told he would “come back to work every day” and that Mr Shahzad would inform Programmed of this. Finally, under cross examination Mr Nasr’s evidence on this point also was difficult, somewhat obstructive and unresponsive. Accordingly, in my view, Mr Nasr’s evidence as to these events is unreliable and ought not be preferred where there is a conflict between his evidence and the evidence of Mr Shahzad.

[36] Accordingly, I find that due to a reduction in work, on 14 December 2021 it was determined that the labour requirement in the GFES department was to be reduced by two employees. Mr Shahzad selected Mr Nasr as one of two employees not to be offered further employment due to the projected reduced need for manual packing. I find that Mr Shahzad met with Mr Nasr on 16 December 2021 and told him that he would not be offered a further contract due to lack of work in the GFES department. At that meeting Mr Nasr enquired as to whether there was any temporary work in the MOGUL department. I find that on 17 December 2020 Mr Shahzad enquired of the MOGUL department area manager whether there was any temporary work for Mr Nasr and was told there was not. I find that on 18 December 2021 Mr Shahzad met with Mr Nasr and told him that there was no further requirement for additional labour in the MOGUL department and that he would not be offered further employment after 31 December 2020. I find that Mr Shahzad did not make the statements asserted by Mr Nasr on 16 December 2020 or 18 December 2020.

Number of employees not offered further employment

[37] Mr Nasr’s evidence was that he was the only employee who was not offered further employment at the expiry of his contract. 79 Mr Khan’s evidence was that over the course of 2020 “about” five “temporary” employees were not offered further contracts, with three of those employees having their employment end in December 2020.80 He gave further evidence that manning levels for permanent employees were fairly constant but manning level for employees engaged on maximum term contracts fluctuate in accordance with the requirements of the departments.81 I accept Mr Khan’s evidence on this matter. Firstly, it was broadly consistent with Mr Shahzad’s evidence which was that there were “around two” temporary employees in December 2020 who were not offered further employment82 and around five temporary employees who were not offered further employment during the course of 2020.83 Secondly, Mondelez employs approximately 125 employees in the production area at the Scoresby plant.84 Mr Nasr worked on only one of three shifts in the GFES department. In those circumstances, I consider it unlikely that he would be aware of all the circumstances of all employees engaged by Mondelez at the Scoresby plant such that he would have an accurate knowledge of who was or was not offered further employment. Accordingly, I consider the evidence of Mr Khan to be more reliable.

Legislative Context

[38] Part 3-2 of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 394(1) of the Act provides that “A person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy.” Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed”.

[39] Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:

“Section 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;

…

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

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

…”

Consideration

Section 386(1)(a) – Termination at the initiative of the employer

[40] It is uncontested that Mr Nasr was employed on a series of eight maximum term contracts. It is also uncontested that Mr Nasr’s employment ended concurrently with the expiry of the Eighth Contract. At issue, in the first instance, is whether the expiry of Mr Nasr’s maximum term contract constitutes a termination on the employer’s initiative for the purposes of section 386(1)(a) of the Act. It is common ground between the parties that that question is to be determined with reference to the Full Bench decision in Khayam v Navitas English Pty Ltd t/a Navitas English 85 (Navitas) and the principles set out in that decision.86

Navitas

[41] In Navitas the Full Bench said:

“that the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer.” 87

[42] The Full Bench then set out the following principles which apply to the interpretation of section 386(1)(a) of the Act: 88

“[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

• the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

• the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

• there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

• the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

• the employee lacked the legal capacity to make the contract; or

• the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).”

[43] I refer to each of the above principles as Principle 1-5, in the order and in accordance with the numbering in which they are referred to above.

Submissions Principles 1-4

Applicant’s submissions

[44] The Applicant submits that the focus of Principle 1 is on the termination of the employment relationship, rather than the termination of the contract of employment. He submits that this is of particular relevance in circumstances where the employment relationship is made up of a sequence of maximum term contracts. 89 I accept those submissions. It is uncontested that Navitas determined that in considering whether there had been a dismissal for the purposes of section 386(1)(a) focus on the employment contract and its termination was not supported by the words of the section and that the proper focus was on the termination of the employment relationship.

[45] The Applicant submits that his employment carried on “largely seamlessly over 2 and a half years” and that the Contracts rolled over in a “perfunctory way.” He further submits that while the introduction of the GFES line may have been the impetus for his initial employment there is no direct or compelling linkage between the introduction of this line and the Applicant’s function and role. 90 He submits that the Eighth Contract was simply a “rehash of what went before” and that he quite reasonably could have thought that he would be offered a further period of employment.91 It is submitted that by early December 2020 he would have had a reasonably held expectation that his employment was by then in reality, on-going.92 The Applicant submits that his employment was “obviously” continuous as his employment separation certificate provides payment for accrued but unused sick leave and annual leave on the basis of two and one half years employment.93 He submits that the number of contract extensions offered to the Applicant was “extraordinary within the business.”94 He further submits that if there was a “mutual expectation” that the Eighth Contract would end the employment relationship upon expiry it would not have been necessary to advise the Applicant of this two weeks prior.95 The Applicant submits that he protested upon being told that his employment would end at the expiry of the Eighth Contract and that the Respondent organised for labour hire work at the factory as a substitute for direct employment.96 Further, the Applicant submits that it is difficult to characterise the Contracts as a genuine agreement for employment for a limited period of time. It is submitted that the Applicant’s decision to accept the Contracts was a rational one and “he took the best deal on offer”.97 Finally, the Applicant submits that in later exchanges regarding the Contracts the Respondent made oral assurances to the Applicant that gave the impression that by about 2020 the employment was permanent.98

Respondent’s submissions

[46] The Respondent submits that the terms of the Eighth Contract reflected a genuine agreement that the employment relationship would end on 31 December 2020. 99 It submits that the fact that the parties entered into a series of maximum term contracts is not determinative that there was an on-going employment relationship.100 The Respondent submits that there were clear operational reasons for each of the Contracts and that these reasons, and that the employment relationship would cease upon the expiry date, were articulated to the Applicant.101 It submits that the terms of the Contracts were unequivocal that the employment relationship would cease at the expiry of each of the Contracts and there was no guarantee of further employment.102 The Applicant accepted each of the Contracts on those terms and the fact that it was “the best deal on offer” is irrelevant to the legitimacy of the terms of the Contracts.103 It submits that there is no valid basis for the Applicant to assert that his employment would continue after the expiration of the Eighth Contract. It submits that no promise was given to the Applicant about further work with the Respondent outside the parameters of the Contract.104 As to the meeting on 16 December 2020, the Respondent submits that the meeting was to remind the Applicant that his employment would end pursuant to the terms of the Eighth Contract and further work would not be offered. It submits that there is nothing inconsistent with employment under a maximum term contract and reminding an employee of the expiry date of that contract.105

Consideration

[47] I reject the submission that the Applicant’s employment carried on “largely seamlessly over 2 and a half years” and that the Contracts rolled over in a “perfunctory way.” I also reject the submission that the Eighth Contract was simply a “rehash of what went before” and that Mr Nasr quite reasonably could have thought that he would be offered a further period of employment or that by early December 2020 Mr Nasr would have had a reasonably held expectation that his employment was by then in reality, on-going. I also reject the submission that the period of employment reflected on the employment separation certificate “obviously” evidences that Mr Nasr’s employment was continuous. Rather, for the following reasons, I find that Mr Nasr was engaged on a series of maximum term contracts which were based on the operational requirements of Mondelez and that represented a genuine agreement by the parties that the employment relationship would come to an end upon the expiry of each of the Contracts, including the Eighth Contract.

[48] Firstly, I have found, and it is not contested, that the terms of the Eighth Contract were clear and unambiguous and clearly stated that it would end on 31 December 2020. Secondly, Mr Nasr agreed that he read each of the Contracts, including the Eighth Contract, and understood that employment under each of the Contracts, including the Eighth Contract, was for a maximum period of time. Thirdly, Mr Nasr also agreed that he understood that there was no guarantee of employment after the expiry date in the Contracts. I accept the Respondent’s submission that in these circumstances the Applicant knowingly accepted the terms of the Contracts and the fact that it was the “best deal on offer” is irrelevant to the legitimacy of the terms of the Contracts. Fourthly, I have accepted the evidence of Mr Shahzad that he met with Mr Nasr in relation to the Sixth to Eighth Contract and explained the reasons for the duration of the Contracts and reiterated that Mr Nasr’s employment would cease at the expiration date of the contract. This is also consistent with Mr Nasr’s evidence under cross examination that he understood that each of the Contracts was for a maximum period of time and would expire on the date specified in the Contracts and further, that he understood that there was no guarantee of employment after the expiry date in the Contracts. Mr Nasr also gave evidence under cross examination that he asked Mr Shahzad “many times” 106 two weeks before the Contracts finished when his contract would be renewed.107 He was therefore aware that the employment relationship was not on-going and would cease in the absence of an offer of further employment. He cannot therefore have had an expectation of on-going employment. Fifthly, I have found that between April 2020 and September 2020 prior to the expiry of each of the applicable Contracts Mr Shahzad met with Mr Nasr and explained the reasons for the further offer of employment. I have accepted Mr Shahzad’s evidence that this was a standard process followed at the Scoresby plant. Sixthly, although Mr Shahzad’s evidence under cross examination was that in his experience the maximum period employees are usually engaged under a maximum term contract is 15 months,108 his evidence was also that the period of engagement was dependant on volume and demand requirements.109 Further, I have accepted the evidence of Mr Khan and Mr Shahzad as to the reasons for the offering of each of the Contracts, as set out in paragraphs [20] to [24] above. Accordingly, I find that notwithstanding the length of time that Mr Nasr was employed under the Contracts being a greater period than is ordinarily the case, he was offered employed under the various Contracts based on genuine operational reasons applicable at the relevant time. Additionally, I consider that this is so is supported by the changing nature of the departments and shifts in which Mr Nasr performed work. In that context I note that under the First and Second Contract Mr Nasr was engaged to work in the MOGUL department, under the Third to Sixth Contract Mr Nasr was engaged to work night shift in the GFES department, whilst under the Seventh and Eighth Contract he worked day shift in that department.

[49] I also reject the submission that if there was a “mutual expectation” that the Eighth Contract would end the employment relationship upon expiry it would not have been necessary to advise the Applicant of this two weeks prior. 110 Firstly, as set out above, the terms of the Eighth Contract were clear and unambiguous and clearly stated that it would end on 31 December 2020. Secondly, Mr Nasr agreed that he read each of the Contracts, including the Eighth Contract, and understood that each of the Contracts, including the Eighth Contract, was for a maximum period of time. Thirdly, Mr Nasr also agreed that he understood that there was no guarantee of employment after the expiry date in the Contracts. Fourthly, Mr Nasr’s evidence was that he asked Mr Shahzad two weeks prior to the expiry of his maximum term contract about renewal. I consider he therefore understood and expected that the employment relationship would end in the absence of a further offer of employment. Fifthly, I have found that between April 2020 and September 2020 prior to the expiry of each of the applicable Contracts Mr Shahzad met with Mr Nasr and explained the reasons for the further offer of employment. I have accepted Mr Shahzad’s evidence that this was a standard process followed at the Scoresby plant. Further, I consider there nothing inconsistent with employment under a maximum term contract and reminding an employee that their employment will end under the terms of that contract on the expiry date. Indeed, I consider it appropriate and to reflect best practice. Accordingly, in light of the above matters I find that there was a mutual expectation that upon the expiry of the Eighth Contract the employment relationship between the parties would end and that meeting with Mr Nasr two weeks prior to expiry to remind him of this was consistent with the standard process at the Scoresby plant.

[50] As to Mr Nasr’s submission that he protested upon being told that his employment would end at the expiry of the Eighth Contract and that the Respondent organised for labour hire work at the factory as a substitute for direct employment, I accept that Mr Nasr queried why his contract was not renewed when he considered that others had had their contracts renewed. However, I do not consider this amounts to Mr Nasr “protesting” the end of his employment. In any event, even if such a query could be considered a protest, in light of the matters set out in points 1 – 5 in paragraph [48] above, I consider nothing turns on this. Mr Nasr was fully aware that his employment would end on the expiry of the Eighth Contract unless he was offered further employment. As to the assertion that the Respondent organised for labour hire work in substitution for direct employment, I have found that Mr Nasr’s evidence of the events of 16-18 December 2020 is unreliable and not to be preferred. 111 Accordingly, I do not consider that this accurately reflects what occurred. Further, I am unable to see why Mondelez would engage Mr Nasr through a labour hire provider rather than offer him a further limited term contract, as it had done on a number of occasions, if there was sufficient work to retain him in employment. Accordingly, I reject that submission.

[51] Finally, I have earlier found at paragraph [28] and [36] that the statements alleged to have been made by Mr Shahzad to Mr Nasr did not occur. Accordingly, I reject the submission that in later exchanges regarding the Contracts Mondelez made oral assurances to Mr Nasr that gave the impression that by about 2020 his employment with Mondelez was permanent. 112

Submissions Principle 5

Applicant’s submissions

[52] The Applicant concedes that Principles 5(a), (b) and (c) are not presently relevant. 113

[53] In relation to Principle 5(d) the Applicant submits that the Contracts operated for administrative convenience and were “rolled out again and again with little discussion…”. 114

[54] The Applicant submits that the Respondent represented to him that his employment would, inter alia, be on-going notwithstanding the express terms of the Contracts. He relies upon the First Representation in support of this contention and submits that Principle 5(e) is therefore engaged. 115

[55] Finally, the Applicant submits that his employment was not consistent with the terms of the 2016 Agreement and the 2018 Agreement and, accordingly, Principle 5(f) is engaged. Firstly, the Applicant contends that he was not engaged for “a period, project, season or job” as contemplated by clause 17 of the 2016 and 2018 Agreements due to the “repeated extensions and their lack of integration with a given project”. 116 The Applicant submits that clause 17 refers to “a period, project, season or job” and as such refers to a singular engagement.117 It is submitted that whilst the introduction of the GFES department may have been the impetus for the Applicant’s initial engagement, this had run its course by the time his employment finished.118 Secondly, the Applicant submits that “a fuller reading” of clause 17 permits repeated engagement but says this is limited to seasonal engagements and not continuous engagements. The Applicant relies on clause 22 of the 2018 Agreement in support of this contention. Given the earlier submission, I understand this to be a submission in the alternative.119 Thirdly, the Applicant submits that the Contracts provide for termination prior to their expiry and that this is not permissible under clause 17 nor under the 2016 and 2018 Agreements more generally.120 In light of all of the above the Applicant submits that “the best

way to view all of this is to look to substance and not form – the applicant’s employment was really on-going and permanent employment, a fortiori by about the third or fourth” of the Contracts. 121

Respondent’s submissions

[56] Mondelez submits that there were no vitiating factors as identified by the Full Bench in Principle 5 of the Navitas decision applicable to the Applicant’s circumstances. Firstly, Mondelez submits that the Contracts were offered based on legitimate business reasons and not mere “administrative convenience” and were not simply “rolled out.” It submits that the Contracts reflected the totality of the employment relationship between the Applicant and Mondelez. 122 Secondly, it submits that Mondelez did not make representations to the Applicant that he would continue to be offered employment notwithstanding the terms of the Contracts.123 Thirdly, Mondelez submits that the First to Eighth Contracts fall within the ambit of clause 17 of the Agreements. It submits that nothing in the plain reading of clause 17 prevents Mondelez from offering maximum term contracts in the way in which it did to Mr Nasr, including that they can be renewed.124

Consideration

[57] For the following reasons, I find that there are no vitiating factors as identified by the Full Bench in Principle 5 of the Navitas decision applicable to the Applicant’s circumstances.

[58] Firstly, I reject the submission that the Contracts were for administrative convenience and were simply “rolled out”. As set out in paragraph [48] above, I have found that the Contracts were offered for genuine operational reasons based on business considerations. Further, I consider this is supported by the changing nature of the departments and shifts in which Mr Nasr performed work. In that context I note that under the First and Second Contract Mr Nasr was engaged to work in the MOGUL department, under the Third to Sixth Contract Mr Nasr was engaged to work night shift in the GFES department, whilst under the Seventh and Eighth Contract he worked day shift in that department. Secondly, I have also already found that the representations asserted to be made to Mr Nasr did not occur and therefore also reject the submission that any representation was made to the Mr Nasr that his employment would be on-going notwithstanding the express terms of the Contracts.

[59] As to the terms of clause 17 of the 2016 Agreement and the 2018 Agreement, I accept that those clauses refer to employment for “a period, project, season or job”. However, I find nothing in the plain reading of the clause to support a conclusion that it precludes more than one engagement. Firstly, I consider that Mr Nasr was employed for “a period” under each of the Contracts. The expiry date was clearly articulated in each of the Contracts. 125 The First and the Second Contract expressly stated that Mr Nasr’s employment was “temporary for the maximum period” specified in the contract and was offered “on the basis that there can be no guarantee of further employment beyond that period.”126 The Third to the Eighth Contract each provided that it extends Mr Nasr’s “temporary employment” for the maximum period specified in the contract and also that the “contract is being extended on the basis that there is no guarantee of future employment beyond the mentioned period.”127 Accordingly, I do not consider that on a plain reading the use of the indefinite article “a” in clause 17, when read in the context of the Agreements as a whole, limits engagement of Mondelez Contractors to a singular engagement. Secondly, there is no express language in clause 17 that limits engagement of an employee under it to a singular occurrence. Had that been the intention of the parties I consider it would have been clearly articulated. Further, for the avoidance of doubt, I also do not consider that there is anything in clause 17, or the Agreement more broadly, that such a limitation ought be implied. Thirdly, I also find no support in the language of the clause, or the Agreements more broadly, that if repeated engagements are permitted they are limited to seasonal engagements. Certain matters to do with seasonal engagement are dealt with in the remainder of clause 17 and there is nothing in those provisions which in my view indicates, either expressly or impliedly, that such a limitation exists. Further, I find no support for this contention in clause 22(j)(ii) of the Agreements. Clause 22 of the Agreements deals with personal leave. Clause 22(j)(ii) of the Agreements provides as follows:

“22. Personal Leave

…

j) Payment of Personal Leave on Termination

…

ii. Temporary employees (Mondelez Contractors), who leave the business of their own accord (either during a period of employment or where they advise the Company they do not wish to return to Mondelez again), will be paid out any unused personal leave. Where a Mondelez contract employee is advised by Mondelez that Mondelez will not be offering the employee another contract or are not offered another contract within 6 months of completion of their last contract, the employee will be eligible to ask that the accumulated personal leave is paid out. Existing Mondelez Contractors employed as at 20 October 2016 may choose either to have their personal leave balance carried over to their next engagement (i.e. the employee’s balance at the termination of employment will appear on the employee’s balance on commencement of a new period of employment) or to have their personal leave paid out. Once a Mondelez contractor decides to pay out his or her personal leave balance, such an employee will no longer have the option to carry over personal leave from one engagement to another. Notification must be provided in writing to the company confirming an employee’s decision to have their personal leave paid out. Mondelez Contractors who are first employed by the company after 20 October 2016 will not have the option to carry over personal leave.” (Commission’s emphasis added)

[60] Accordingly, in light of the provisions emphasised above, rather than supporting the Applicant’s contentions, I consider that the clause 22(j)(ii) of the Agreements evidences that Mondelez Contractors may be offered more than one period of engagement. Further, I do not consider that there is anything in the plain reading of the clause that limits its application to seasonal employees.

[61] I also reject the contention that the Contracts are inconsistent clause 17 of the Agreements as they provide for termination prior to their expiry. Clause 12 of the Agreements deals with notice of termination and provides as follows:

“12. Notice Period of Termination

Employees are required to provide two weeks’ notice of termination. Notice periods will be assessed case by case.”

[62] The relevant provisions of clause 17 of the Agreements are set out in paragraph [16] above.

[63] Firstly, I am unable to identify anything in the express language of either of these clauses, nor the Agreements more generally, that supports the proposition that employment under clause 17 on a maximum term contract is not for “a period” if the relevant contract allows for termination during the contract’s term. Secondly, the Applicant makes no submissions in support of this contention or the basis upon which it is said to arise. Thirdly, I consider such a contention to be inconsistent with the recognition under clause 22(j)(ii) above, that a Mondelez Contractor may leave of their own accord “during a period of employment.” For completeness, should it be contended that such an interpretation is to be given to clause 17 in reliance upon the interpretation given to the phrase “specified period of time” in section 386(2)(a) of the Act, I also reject that contention. Firstly, the language in the Agreements is not consistent with the language in section 386(2)(a). Secondly, I consider very clear language would be required before the provisions of clause 17 could be subject to the construction given to section 386(2)(a) and no such language is included in the Agreements.

Disposition

[64] I find that Mr Nasr was engaged under a series of maximum term contracts based on the genuine operational requirements of Mondelez. I find that the terms of the Eighth Contract reflected the genuine agreement of the parties that the employment relationship would end upon the expiry of that contract. I find that there are no vitiating factors as identified by the Full Bench in Navitas applicable to Mr Nasr’s circumstances. Accordingly, I find that the employment relationship between the parties ended by the effluxion of time upon the expiry of the Eighth Contract. I therefore find that Mr Nasr’s employment was not terminated on the initiative of the employer. Mr Nasr was therefore not dismissed pursuant to section 386(1)(a) of the Act and his application for relief from unfair dismissal under section 394 of the Act must therefore be dismissed.

[65] Given my findings above, it is not necessary that I address the Respondent’s submissions in the alternative.

[66] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

B Terzic for the Applicant
R Catanzariti for the Respondent

Hearing details:

2021
Melbourne
6 May 2021

Printed by authority of the Commonwealth Government Printer

1 Respondent’s Outline of Argument at [14]

2 Respondent’s Outline of Argument at [4-5], [14]

3 Respondent’s Outline of Argument in Reply at [11-12]

4 Respondent’s Outline of Argument in Reply at [26-30]

5 Statement of Sher Mansoor Khan at [4]

6 Transcript PN 88

7 Transcript PN 89-91

8 Statement of Michael Nasr at [1]

9 Statement of Michael Nasr at [2]

10 Statement of Michael Nasr at [1]

11 Statement of Michael Nasr at [4]

12 Statement of Sher Mansoor Khan, Attachment SK-1-SK-8

13 Statement of Sher Mansoor Khan, Attachment SK-8

14 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2

15 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2

16 Statement of Sher Mansoor Khan, Attachment SK-3-SK-8

17 Statement of Sher Mansoor Khan, Attachment SK-3-SK-8

18 Transcript PN 321

19 Transcript PN 320

20 Transcript PN 323, PN 325

21 Transcript PN 323-325

22 Statement of Sher Mansoor Khan, Attachment SK-1-SK-2

23 Statement of Sher Mansoor Khan, Attachment SK-3-SK-6

24 Statement of Sher Mansoor Khan, Attachment SK-7-SK-8

25 Statement of Michael Nasr at [11-13]

26 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 104, PN 290

27 Statement of Michael Nasr at [8]

28 Statement of Michael Nasr at [8]

29 Statement of Michael Nasr at [9]

30 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 101

31 Transcript PN 104

32 Transcript PN 109

33 Transcript PN 112

34 Transcript PN 120

35 Transcript PN 117-118

36 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 133

37 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 133

38 Statement of Sher Mansoor Khan at [9.1]; Transcript PN 143

39 Statement of Sher Mansoor Khan at [9.1]

40 Statement of Sher Mansoor Khan at [9.2]; Transcript PN 147-148

41 Transcript PN 149

42 Statement of Sher Mansoor Khan at [9.2]

43 Statement of Sher Mansoor Khan at [9.3]

44 Statement of Anjum Shahzad at [6]

45 Statement of Anjum Shahzad at [6.1]

46 Statement of Sher Mansoor Khan at [9.4]

47 Statement of Sher Mansoor Khan at [9.4]

48 Statement of Anjum Shahzad at [6.2]

49 Transcript PN 262-265

50 Statement of Anjum Shahzad at [6.2]; Transcript PN 262-266

51 Transcript PN 162-165

52 Transcript PN 157

53 Transcript PN 290

54 Statement of Anjum Shahzad at [6]

55 Statement of Michael Nasr at [23]

56 Further Statement of Anjum Shahzad at [5]; Transcript PN 269-270

57 Transcript PN 271

58 Transcript PN 268

59 Further Statement of Anjum Shahzad at [5]

60 Transcript PN 360

61 Transcript PN 365-371

62 Transcript PN 328-360

63 Statement of Michael Nasr at [15]

64 Statement of Michael Nasr at [16]

65 Statement of Michael Nasr at [17]

66 Statement of Michael Nasr at [18-19]

67 Statement of Anjum Shahzad at [7]

68 Statement of Anjum Shahzad at [8]

69 Statement of Anjum Shahzad at [10]

70 Statement of Anjum Shahzad at [11]

71 Further Statement of Anjum Shahzad at [4]

72 Transcript PN 280-281

73 Further Statement of Anjum Shahzad at [4.2]

74 Transcript PN 375

75 Transcript PN 376

76 Statement of Michael Nasr at [15]

77 Transcript PN 380

78 Transcript PN 384

79 Transcript PN 380, PN 424, PN 428

80 Transcript PN 158-159

81 Transcript PN 179

82 Transcript PN 207

83 Transcript PN 209

84 Transcript PN 88

85 [2017] FWCFB 5162

86 Respondent’s Outline of Submissions at [21-29]; Applicant’s Outline of Submissions at [18],

87 [2017] FWCFB 5162 at [72]

88 [2017] FWCFB 5162 at [75]

89 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (a)

90 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (b), Principle 5(f), paragraph (p)

91 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (c)

92 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (f)

93 Transcript PN 708

94 Transcript PN 709

95 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)

96 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)

97 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (h)

98 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (i)

99 Respondent’s Outline of Argument in Reply at [14], [19]

100 Respondent’s Outline of Argument in Reply at [16]

101 Respondent’s Outline of Argument in Reply at [17]

102 Respondent’s Outline of Argument in Reply at [19]

103 Respondent’s Outline of Argument in Reply at [19]

104 Respondent’s Outline of Argument in Reply at [20]

105 Respondent’s Outline of Argument in Reply at [18]

106 Transcript PN 346

107 Transcript PN 347-348

108 Transcript PN 251

109 Transcript PN 242, PN 250

110 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)

111 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 2, paragraph (e)

112 Applicant’s Outline of Submissions at [18], Principle 1, paragraph (d), Principle 4, paragraph (i)

113 Applicant’s Outline of Submissions at [18], Principle 5(a), paragraph (j) - Principle 5(c), paragraph (l)

114 Applicant’s Outline of Submissions at [18], Principle 5(d), paragraph (m)

115 Applicant’s Outline of Submissions at [18], Principle 5(e), paragraph (n)

116 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (o)

117 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (s)

118 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (p)

119 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (q)

120 Applicant’s Outline of Submissions at [18], Principle 5(f), paragraph (r), paragraph (t)