| [2021] FWC 949 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Teslime Kuru
v
Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd
(U2020/12766)
COMMISSIONER YILMAZ |
MELBOURNE, 24 FEBRUARY 2021 |
Application for an unfair dismissal remedy – application dismissed.
[1] On 23 September 2020, Ms Teslime Kuru made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Cheltenham Manor Pty Ltd T/A Cheltenham Manor (Cheltenham Manor). Ms Kuru was an enrolled nurse in the position of part-time personal care assistant from 16 August 2017 to 2 September 2020. Ms Kuru had previously worked for Cheltenham Manor for a period of 6 years. Ms Kuru seeks a remedy of compensation and ‘to clear her name’. 1 Cheltenham Manor is an aged care facility.
[2] It is not in dispute that Ms Kuru’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). Cheltenham Manor is not a small employer covered by the Small Business Unfair Dismissal Code. It is not in dispute that Ms Kuru’s employment was terminated on 2 September 2020. The termination of employment is a result of Cheltenham Manor’s health and safety directions to staff in response to the COVID-19 pandemic and Ms Kuru’s breach of those directions. There were no jurisdictional matters raised.
[3] At the hearing, Ms Kuru gave oral evidence and Cheltenham Manor called three witnesses:
• Ms Marlene Curl, Housekeeper;
• Ms Jill Chapman, Senior Laundry Worker; and
• Mr Brett McMahon, Director and Assistant Manager.
[4] I received substantial documentary and oral evidence at the hearing from both parties.
[5] Both parties were granted leave to be legally represented.
Background
[6] Ms Kuru is an enrolled nurse and was employed part-time from 16 August 2017 until her dismissal on 2 September 2020. She had previously worked for Cheltenham Manor between about July 2010 and October 2016 when she resigned to look after her mother. 2
[7] In 2020, Cheltenham Manor like all employers in the aged care industry, were at risk of COVID-19 infection. Both the Australian and Victorian Government issued regular public awareness material regarding the nature of the coronavirus; a new virus causing respiratory problems among other symptoms. This public information included the range of symptoms requiring testing and/or isolation, tracking of infection numbers and other demographic information, the information concerning latest intelligence of how the virus spreads and warnings for those most at risk of infection. Further, throughout 2020, and indeed even today there continues to be new public awareness announcements and directives that limit gatherings of people in social and work settings. Relevant to this matter, the public messaging from early on had focussed on the risk of people in residential settings and those aged over 70 years. 3
[8] Cheltenham Manor is a family owned and operated aged care facility and is accredited through the Aged Care Quality and Safety Commission (ACQSC). In response to the COVID-19 risk, it developed and introduced a number of protocols to protect both employees and their vulnerable residents who were considered higher risk of the infection and its consequences. 4
[9] On 26 July 2020, 5 a memo was sent to staff that provided an update on the state of the virus in the community, its steps to reduce risk to staff and residents such as standing down employees exposed to outside risk i.e. those that worked in hospitals and other nursing areas including the cessation of use of casual agency staff. The memo further referred to the division of the facility into zones, it directed staff to work in only their allocated zone and not to interact with staff from other zones. The memo also detailed the protocols concerning smoking breaks.
[10] On or around 26 August 2020, 6 Ms Kuru arrived at the facility at about 6.30am, some 30 minutes before commencement of her shift and parked in the car park of a school neighbouring the facility. Two other employees, both from different zones joined her in the car park. When they arrived in their cars all three employees chatted while they smoked their cigarettes. All three smoked their cigarettes outside of their cars.
[11] Some five business days later, Ms Kuru’s employment was terminated. Ms Kuru submits that her dismissal was unfair, while Cheltenham Manor submits that Ms Kuru’s conduct was serious misconduct justifying dismissal. Cheltenham Manor submit Ms Kuru was not wearing PPE, the other staff were not from her zone, social distancing was not observed and further, Melbourne was also subject to stage 4 restrictions that disallowed social gathering. It submits that the conduct was in breach of the facility protocols and placed both Ms Kuru and the elderly residents at significant risk of the COVID-19 virus.
[12] Ms Kuru submits that her shift at the time in question was in the morning commencing at 7.00am and finishing at 2.15pm. She submits she enjoyed working at Cheltenham Manor over the 9 years in total, experiencing most enjoyment from the hands-on care of the residents.
[13] Cheltenham Manor introduced various changes in response to the COVID-19 restrictions, and Ms Kuru submits the changes were relayed via email and memos generally from the Director, Mr Brett McMahon. She submits no training was provided in relation to the changes. Ms Kuru further submits that Mr McMahon was not normally at the facility and that her questions were directed at either the facility manager or shift supervisor. She states that it was difficult to get information from management. 7
[14] Ms Kuru described the new measures as challenging and stressful as staff were required to wear personal protective equipment (PPE), including face masks and face shields, the staff room facilities could not be used and staff travelling to work in vehicles had to use their vehicle to eat, drink and smoke. She referred to the zones intended to keep staff separated, but she says interaction between zones occurred when housekeeping or kitchen staff attended to duties servicing the residents. 8
[15] Ms Kuru submits that she received the memo of 26 July 2020 and states:
“That memo said that staff not to interact with staff from a different zone and that smokers were to only smoke within their cars alone, parked outside of the basement carpark. I understood that the requirement to park outside the basement was because smoking was not permitted in the basement. I read the requirement about smoking as applying to breaks during a shift. I now understand that this was meant to apply more broadly.” 9
[16] On the morning of 26 August 2020, Ms Kuru states that she arrived at the car park in the school neighbouring the facility and exited from her car with an umbrella as it was raining to light up her cigarette. It was a dark morning, and this was also confirmed by her co-workers. She states that both Ms Chapman and Ms Curl drove up alongside her and they also exited their vehicles and lit up a cigarette. Ms Kuru contends that they remained alongside their own vehicles except when they came around to inspect the damage on Ms Kuru’s car after it was damaged when she last parked on the side street next to the facility. However, Ms Kuru states that she was careful to maintain social distancing. 10 Ms Kuru maintained that the social gathering was not pre-planned and she had not mentioned the damage to her vehicle to either Ms Curl or Ms Chapman prior to that morning.11 Ms Kuru also maintains that the meeting was “probably five minutes, if that.”12 She also contends that she had met and had a smoke with Ms Curl and/or Ms Chapman no more than twice in August 2020 and never met with either of them during the day.13
[17] After arriving home on 28 August, Ms Kuru states that she received an email from Mr McMahon asking why she was smoking on the school grounds and not following his directions of 26 July 2020. The email also asked for details who had accompanied her. She states that she replied to the email at 5.09pm on 29 August 2020. Both emails were tendered in evidence. 14
[18] On 31 August 2020, Ms Kuru received a further email from Mr McMahon stating that he was disappointed in her conduct, that she had flouted other Cheltenham Manor endeavours to keep it safe and that she was suspended from duties. She was invited to respond before he considered her employment. Ms Kuru responded, and following receipt of a further email from Mr McMahon, Ms Kuru sought the assistance of the ANMF to formally respond on her behalf. Mr McMahon subsequently dismissed her employment. Copies of the email correspondence was tendered in evidence. 15
[19] The ANMF in its correspondence to Mr McMahon state that the alleged misbehaviour of Ms Kuru is not misconduct, and that the enterprise agreement does not provide for standdown or contain a disciplinary clause. It further states that Cheltenham Manor has misrepresented its authority by directing Ms Kuru outside of work hours and it had no lawful basis to control the conduct of staff in excess of DHHS guidelines. 16
[20] The ANMF in their submissions raise the following considerations:
• The directives went beyond any DHHS or other authority requirements;
• There was a lack of training regarding the new requirements set by Cheltenham Manor which were imposed on staff outside of work hours;
• The three co-workers maintained that they complied with social distancing when they met and there is no evidence that they shared lighters;
• Even though Ms Kuru has spoken to her co-workers during the investigation, it was not intended to mislead the investigator and the extent to which it is relied on for valid reason to dismiss, knowledge of this occurred after the termination of employment and Ms Kuru was denied procedural fairness on this reason;
• On the matter of proportionality the ANMF submit the conduct may have justified a final warning but not a dismissal, the length of service weighs against termination of employment, the incident occurred outside of work hours and at the time Ms Kuru was subject to difficult working conditions in a dangerous industry and despite these challenges she also made sacrifices in her personal life to comply with her employer’s requests.
Submissions of the Respondent
[21] Cheltenham Manor is an aged care facility, and its residents were at extreme risk of COVID-19 virus infection, with the most severe risk being death. It developed protocols to prevent exposure to the virus and to minimise its potential spread throughout the facility.
[22] Among the protocols, Cheltenham Manor introduced:
• The division of the facility into zones with prohibition for staff to interact with staff from other zones
• Strict enforcement of social distancing
• Staff required to wear essential PPE, which included masks
• Activities where staff would remove their face masks (eating drinking and smoking) were to be kept to a minimum and only where staff were alone. 17
[23] Cheltenham Manor submit that Ms Kuru is an experienced enrolled nurse and was employed as a personal care attendant since 16 August 2017. Ms Kuru was observed in the car park with other employees not observing the facility COVID-19 protocols. She received a formal written warning in January 2020 concerning time sheet irregularities. Ms Kuru’s conduct together with her previous conduct leading to a final warning deemed her behaviour serious enough to warrant termination of employment. After giving Ms Kuru an opportunity to respond, her employment was terminated on 2 September 2020 for misconduct, but she was paid notice, albeit erroneously at 8 weeks instead of 4. 18
[24] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
[25] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the Commission considers relevant.
[26] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 19
Consideration
[27] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.” 20 Further it is the role of the Commission to consider the employer’s reasoning to assess whether that reasoning is valid.21
[28] I find that Cheltenham Manor’s reason for termination of employment is sound and defensible.
[29] Cheltenham Manor gave evidence 22 that it implemented workplace measures to control risks associated with COVID-19. It is not contested that aged care facilities were and continue to be potentially high-risk work sites and COVID-19 infection poses significant consequential risk to its vulnerable aged residents. Cheltenham Manor took an unapologetic hard-line approach to infection control. Following on from its satisfaction of all 44 standards in its re-accreditation in August 2019 up to May 2022, the management team developed a COVID-19 management protocol containing three stages which was regularly revised and remained in action at the time of the hearing. Cheltenham Manor established a joint COVID-19 sub-committee in or around January 2020, before the first reported case in Australia.23 The sub-committee members included Mr McMahon, the Greenwood Manor Facility Manager, Board representative of Cheltenham Manor, Facility Manager of Cheltenham Manor, a Registered Nurse, the Clinical Care Co-ordinator of both Cheltenham Manor and Greenwood Manor, the Assistant Manager of Greenwood Manor and the Quality Manager. New measures were introduced into the facility following Victoria’s first wave in March 2020. This stage included temperature checks and declarations from staff. With the second wave in June 2020, the facility was split into two zones, further PPE measures were introduced and in July 2020 more measures included 9 zones and directives for taking of meals, refreshments and for smokers.
[30] The measures taken by Cheltenham Manor including information on the pandemic were communicated through memorandums, staff training and COVID Updates prepared by the Cheltenham Manor Board representative from May 2020. 24
[31] Ms Kuru was dismissed for failing to follow the facility zoning directives that prohibited the interaction of staff between zones. Ms Kuru socialised without personal protective equipment while smoking with staff from other zones. While the breach had occurred prior to the commencement of her shift, Cheltenham Manor considered the actions were sufficiently connected to her employment and which incidentally contravened Victoria’s stage 4 restrictions.
[32] Ms Kuru in her defence states that she was unaware that the directives applied outside of work hours and the impromptu meeting between her and her co-workers was short while they observed the damage on her vehicle and had a cigarette whilst maintaining safe distancing. The ANMF also wrote to Mr McMahon seeking reconsideration of a termination of employment firstly challenging whether the conduct was misconduct and whether the directive was lawful.
[33] Cheltenham Manor had determined the actions of Ms Kuru justified dismissal and having taken into consideration her position as nurse and her prior conduct, the dismissal took effect with payment of notice in lieu.
[34] Having considered the evidence, I prefer the evidence of Ms Chapman that the meeting was not impromptu, that they had met for the purpose of having a cigarette and to observe the damage to Ms Kuru’s vehicle. They met well before the usual arrival time for Ms Chapman. It was dark and I accept that they did not most likely observe safe distancing, and in any event they knew it was in breach of the directive that staff from different zones get together and of course they also knew it was inconsistent with the directives from the government in relation to social gathering restrictions. The evidence concerning their discussion regarding how they would respond to Mr McMahon was evidence that they knew what they had done was clearly wrong and serious enough to risk their employment. Ms Kuru in her evidence admitted that she knew termination of employment was “coming because – because of what happened back in January”. 25
[35] I do consider the directives from Cheltenham Manor lawful and reasonable; the directives were considered having regard to available knowledge of the virus and risks to keep the staff and residents safe. The consequences for the residents were severe if insufficient risk mitigation measures were not taken. Sadly, there were serious consequences for a number of aged care facilities in Victoria as a result of the COVID-19 Pandemic. Cheltenham Manor was one such facility that averted any such serious infections.
[36] I do not accept the submissions of the ANMF that the directives went beyond that which was necessary to comply with the facility’s obligations. In doing so I accept the evidence of Mr McMahon that he obtained advice through his interactions with the various authorities, and together with his sub-committee the available information on the virus and the perceived threats to the staff and residents was assessed and appropriate risk mitigation measures were implemented. Given the degree of risk from infection, the measures averted the consequences of the threat, and the expectations of Ms Kuru were no different from the expectations of all that worked at Cheltenham Manor and her failure to abide by the directives carried significant risk.
[37] I am also satisfied that there is no evidence that the measures taken by Cheltenham Manor were inconsistent with any advice from the DHHS, ACQSC, WorkSafe Victoria or any other authority directly involved in the containment of COVID-19. Cheltenham Manor had a right to take reasonable steps to protect its interests, those interests being the lives of those in its care. While in normal circumstances who Ms Kuru smoked cigarettes with would have no bearing on her employer’s interests, however, the circumstances in August were not usual or normal.
[38] Further, I consider the directives including the memorandum in question relating to the latest measures were clear. Nevertheless, had Ms Kuru been unsure of any of the expectations, she could have and should have sought clarification. While Ms Kuru states that she was unsure who to ask and that everyone was handballing to somebody else, 26 her statement in my opinion is unlikely given the number of managers and specialists involved on the sub-committee and the level of information disseminated to all staff. I consider on balance that the evidence does not support her contention. Mr McMahon stated that Cheltenham Manor had a HR manual that contained his direct contact details had Ms Kuru not wanted to contact him via the quality manager, and she had access to other senior staff members that were involved on the subcommittee and failing those individuals she had direct access to her supervisor which she acknowledged she had accessed in the past. Ms Kuru gave evidence that she followed all of the directives diligently, which confirms she understood what was expected of her and training relating to the memorandum was unnecessary.
[39] The suggestion that Mr McMahon did not have qualifications in science and was therefore less capable or without authority to decipher authoritative or technical information 27 to assess the risk to the facility and mitigation steps in my opinion is not a reasonable assertion. Employers are regularly required to assess information and consider risk be it safety or compliance with various regulatory requirements. In any event, Mr McMahon described the composition of his sub-committee that had sufficient representation across the organisation and with varied levels of expertise to formulate a whole of organisation reasonable and practical approach.
[40] Cheltenham Manor state that in consideration of the dismissal was Ms Kuru’s behaviour prior to the smoking incident and immediately following receipt of the letter dated 28 August 2020, where she was asked to not speak to staff or residents about the matter. Ms Kuru admits to speaking to both Ms Curl and Ms Chapman, although her defence is that she didn’t think the direction included her two co-workers involved in the incident. While understandably, Ms Kuru was concerned given her prior warning for timesheet discrepancies, I do accept that the purpose of the communication was to get the stories straight, this in effect interfered with the investigation. Ms Kuru states she needed assistance to respond, while Ms Curl states that they discussed how they should respond to influence their employer’s response. I prefer the evidence of Ms Curl. The ANMF submit that the concern that Ms Kuru spoke to her co-workers in defiance of the instruction is not a valid reason and knowledge of this came to Cheltenham Manor’s attention after the dismissal. Cheltenham Manor contend that this consideration as an additional valid reason because Ms Kuru interfered with the investigation.
[41] I accept that while this was not known at the time of the dismissal, the interference in the investigation is serious and directly goes to the trust between Cheltenham Manor and Ms Kuru which was already poor following her timesheet transgression.
[42] The evidence that aged care facilities have been high risk is apparent, therefore healthcare workers have been the last line of defence against the virus. 28 The risk to the aged is severe with a higher risk of death. The virus spreads easily which is why PPE, social distancing and restrictions on mobility (including zoning of the facility) have been the mechanisms adopted by governments and employers. Ms Kuru gave evidence that she understood this. Cheltenham Manor’s evidence concerning the reasons for its policy directions were explained. In August 2020 when Ms Kuru breached the control measures, she was subject to stage 4 restrictions imposed by the Victorian Government and transmission restricting directions from her employer. Her conduct therefore was sufficiently connected to her employment even though it occurred before the commencement of her shift. The direct effect of her conduct had the potential to damage her employer’s interests should there have been contamination in a zone or across zones. Following Ms Kuru’s prior warning, her conduct during the investigation (failure to acknowledge fault together with interference in the investigation) reasonably offended the trust between employer and employee. Further Ms Kuru’s duties required her to care for the most vulnerable, therefore her own actions, albeit outside of work hours during a heightened period of the pandemic was in my opinion incompatible with her role. Having considered relevant authorities,29 I am satisfied that Cheltenham Manor had a sound, defensible and well-founded reason to dismiss Ms Kuru. I find this consideration does not weigh in Ms Kuru’s favour.
Was Ms Kuru notified of the valid reason?
[43] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 30 and in explicit31 and plain and clear terms.32
[44] I am satisfied that Ms Kuru was notified of the reason for her dismissal and further given an opportunity to respond including the opportunity to provide further information that may dissuade Cheltenham Manor from terminating her employment.
[45] Ms Kuru received correspondence from Cheltenham Manor on 28 and 31 August 2020 and 1 September 2020, regarding the reasons leading to her dismissal. Further correspondence was sent to the ANMF dated 2 September 2020 confirming the reasons for the dismissal.
Was she given an opportunity to respond to any valid reason related to her conduct?
[46] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 33
[47] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 34 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.35
[48] Ms Kuru was given an opportunity to respond to the reason considered for her dismissal, both in correspondence from 28 and 31 August 2020. The ANMF wrote also to Cheltenham Manor and their request for reconsideration was considered and responded to.
Did Cheltenham Manor unreasonably refuse to allow the Applicant to have a support person present?
[49] Cheltenham Manor did not unreasonably refuse to allow a support person noting that a meeting did not occur. The investigation and opportunity to respond was conducted in writing. Despite the written communication Ms Kuru did contact her union and they also corresponded with Cheltenham Manor.
Was she warned about unsatisfactory performance before the dismissal?
[50] Performance is not a consideration in this matter. Cheltenham Manor do however, refer to an incident in January 2020 which raised concerns about trust and confidence in Ms Kuru. The evidence of Ms Kuru that she was concerned because of her earlier warning that the smoking incident raised a serious possibility for termination was not lost on her.
To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?
[51] Cheltenham Manor is not a small employer and the process was not impacted by its size.
What other matters are relevant?
[52] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[53] Ms Kuru’s period of service and her prior period of employment, she submits should be a consideration. I do not agree that there should be any further leniency. Cheltenham Manor took her period of service in consideration when it dealt with other issues such as the timesheet discrepancy and acrylic nails. However, the direct disregard of protocols to ensure the safety of the staff and residents was so serious and her period of employment is relevant in that she did not have a satisfactory explanation. Ms Kuru is experienced in the aged care sector, she submits that she enjoys the hands-on care and had followed prior safety directives. Further Ms Kuru admits that she understood that her actions could have been catastrophic for the facility. 36 Her period of service is not a consideration in her favour, Ms Kuru was familiar with the risks, she knew the vulnerability of residents in her care and with her experience as a nurse and personal care attendant there was no valid reason why her period of service should weighed in her favour. Ms Kuru was also aware that Victoria was subject to stage 4 restrictions.37
[54] Ms Kuru stated that both Ms Curl and Ms Chapman retained employment albeit with a warning and it was unfair that she was dismissed. Mr McMahon provided oral evidence that both Ms Curl and Ms Chapman had unblemished records, admitted to doing the wrong thing and did not provide direct care to residents. Ms Kuru on the other hand maintained that she did not do anything wrong because the conduct occurred outside of work hours, she had a prior formal warning which put into question the trust Cheltenham Manor had in her and because of her experience and direct responsibility for the resident’s she would have or should have understood the seriousness of her action.
[55] Ms Kuru also states that it is relevant that staff worked in a difficult work environment and this should have been a consideration in her favour. While I accept that the conditions were out of the ordinary and difficult, the rationale for the directives was to keep staff and residents safe from serious illness and death. Because of Ms Kuru’s training as a nurse, her breaches of the safety directives were serious and could not reasonably be condoned by Cheltenham Manor.
[56] Cheltenham Manor also refer to the evidence that Ms Kuru considered COVID-19 to be a conspiracy which raised concerns whether she took her employer’s directives seriously. While Ms Kuru could maintain whatever beliefs she had, the point is that Cheltenham Manor had made the assessment of risk which was extremely high and implemented practical and reasonable steps to keep the facility safe, which it was entitled to do. Ms Kuru had an obligation to follow those lawful and reasonable directions. On the morning that Ms Kuru met with her co-workers she did not. Furthermore, the evidence is that she had met with her co-workers in breach of the directives on other occasions. While she denies the number of occasions exceeded two in the month of August, I prefer the evidence of Ms Curl that it was more often, and those times included during the day. Whether twice or more often, Ms Kuru disregarded her obligations to follow reasonable and lawful directions.
[57] Overall, I find the dismissal was in the circumstances, proportionate to Ms Kuru’s conduct.
[58] I have considered each matter specified in section 387 and in reaching my determination I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
[59] I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
[60] Having considered all the relevant factors, I do not consider the termination unfair.
[61] As the dismissal was not unfair, I am not required to consider issues of remedy.
[62] For these reasons, I will issue an order separate to this decision, that the application be dismissed.
COMMISSIONER
Appearances:
Mr J. McKenna and Ms M. Leikina for the Applicant
Mr R. Miller and Ms J. Bandara for the Respondent
Hearing details:
2020
Melbourne (Video via Microsoft Teams)
16 and 17 December
Printed by authority of the Commonwealth Government Printer
<PR727188>
1 Applicant’s outline of argument at [7] and [41].
2 Applicant’s outline of Argument at [2].
3 Attachments BHM-2 and BHM-3 to Exhibit R3 are an example of government advice to the public.
4 Exhibit R3 at [3] and [6].
5 Attachments MAC-1 to Exhibit R1 and BHM-18 to Exhibit R3.
6 The date was either 25 or 26 August 2020. The matter does not turn on the actual date.
7 Exhibit A1 - Applicant’s witness statement at [9].
8 Ibid at [10] and [11].
9 Ibid at [13].
10 Ibid at [17] and [18].
11 Transcript at PN97.
12 Transcript at PN106.
13 Transcript at PN 112 and PN113.
14 Exhibit A1 - Applicant’s witness statement at [22] – [25] and attachments TK-1 and TK-2.
15 Ibid at [27] – [39] and attachments TK- 3 to Tk-6.
16 Attachment TK-5.
17 Respondent’s outline of argument at [3] and attachments BHM-15, BHM-17, BHM-18, BHM-19 and BHM-20.
18 Ibid at [3].
19 Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
20 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
21 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
22 Exhibit R 3 and oral evidence of Mr McMahon.
23 Exhibit R3 at [34] – [35].
24 Exhibit R3 at [34] – [42] and oral evidence of Mr McMahon.
25 Transcript at PN322.
26 Transcript at PN201.
27 Attachments BHM-4, BHM-13 and BHM-14 to Exhibit R3.
28 Attachment BHM-12 to Exhibit R3.
29 Rose v Telstra Corporation Limited [1998] AIRC Q9292, Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258, Hussein v Westpac Banking Corporation (1995) IRCA 132; 59 IR 103.
30 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
31 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
32 Ibid.
33 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
34 RMIT v Asher (2010) 194 IR 1, 14-15.
35 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
36 Transcript at PN 155 - PN157, PN177 – PN181, PN207, PN220 - PN221.
37 Transcript at PN222 – PN224.