[2022] FWC 3185
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Peter Dupesovski
v
Motor Traders Association of New South Wales
(U2022/8380)

DEPUTY PRESIDENT BOYCE

SYDNEY, 2 DECEMBER 2022

Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy - job no longer required to be performed by anyone - redundancy a result of changes in operational requirements – no coverage or application of modern award or enterprise to applicant’s employment with respondent – no requirement to consult under s.389(1)(b) of the Fair Work Act 2009 - redeployment not reasonable in all the circumstances - objection regarding genuine redundancy upheld – application dismissed.

Introduction

[1] Mr Peter Dupesovski (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant asserts that his dismissal by the Motor Traders Association of New South Wales (Respondent) on 4 August 2022 was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] The Respondent says that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and otherwise denies that the dismissal was unfair.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing to resolve the Respondent’s genuine redundancy objection. Written closing submissions from both parties were thereafter received.

[4] At the hearing, the Applicant appeared for himself, and Mr Tim McDonald, Partner, McCabes Lawyers, appeared with permission for the Respondent. 1

[5] Having regard to the evidence tendered, and the submissions of the parties, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act. My reasons for this decision follow.

Evidence

[6] The Respondent relied upon the following witness evidence:

(a) Witness Statement of Mr Jason Steporowski, General Manager Membership and Sales, dated 7 October 2022; 2 and

(b) Second Witness Statement of Mr Steporowski, dated 24 October 2022; 3

[7] The Applicant relied upon his own Witness Statement, dated 17 October 2022. 4

Relevant law

[8] Section 385 of the Act qualifies a claim for unfair dismissal:

[9] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of genuine redundancy:

[10] Section 389 provides the statutory definition as to what qualifies as a genuine redundancy:

[11] In view of s.389 of the Act, there are three questions that need to be answered:

Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise? (s.389(1)(a))

[12] Sub-section 389(1)(a) of the Act provides that a person’s dismissal is a case of genuine redundancy if the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy. 5

[13] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

[14] The basis upon which “operational requirements” can be said to give rise to change is extremely broad. A change in operational requirements does not only arise where a business has excess labour, is running over budget, unprofitable, losing customers, or down on revenue/s. As Lee J stated in Nettlefold v Kym Smoker Pty Ltd 6, the phrase “operational requirements” encompasses change arising from both internal and external factors, including via the consideration of matters (over the short, medium and/or longer terms) such as “the past and present performance of the [business], the state of the market in which [the business] operates, steps that may be taken to improve the efficiency of the [business] by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking”.7 Indeed, changes to operational requirements might arise because an efficient and/or profitable business proposes or desires to become even more efficient and/or profitable.

[15] It equally follows that modifications to a business that might be said to be required or necessary, because of changes to operational requirements, are extremely varied and broad. In other words, the nature and extent of any modifications to a business flowing from changes in its operational requirements are essentially matters of managerial discretion. Such discretion might be exercised to make changes that are, in the opinion of the relevant decision-maker, required or necessary. The fact that others, for example, an employee, customer, shareholder, or stakeholder affected by a decision, or an unaffected member of the public, might consider a particular decision to be bad, or wrong, or consider that another alternative and better (or more appropriate) decision ought to have been made, is not to the point. Persons in managerial roles (in the for-profit, or not-for-profit, sectors) are tasked with the responsibility to make decisions in respect of how a business is run to achieve stability and/or growth over the short, medium and/or longer terms. It is certainly not the role of the Commission to stymie or interfere with operational decisions made on a bona fide basis within the extremely broad bounds of managerial discretion. As was stated by Vice President Hatcher in Low v Menzies Group of Companies 8:

“It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” 9

[16] It has been held that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. Relevantly, the test is not whether the person’s duties or responsibilities (or some of them) survive or remain. Rather, the test is whether the whole of the job previously performed by an employee (unmodified) still exists. 10 Focus is to be placed upon the job, not the duties involved in that job, or the individual performing that job (or a new/modified job). Importantly, as broadly stated in Dibb v Commissioner of Taxation11, an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by another employee, or other employees.12

[17] Mr Steporowski gives evidence that the Respondent’s membership and sales department had been operating well below forecasted targets in 2022. In the second half of 2022, the Respondent determined to restructure this department to reduce costs, improve efficiencies and better engage with the industry. This was accompanied by a push away from the use of mainly manuals systems to digital systems, and an investment in a new Customer Relations Manager System, called Zoho. As part of the proposed restructure, the Respondent was also reviewing areas covered by individual managers (Area Managers).

[18] The Applicant was employed by the Respondent as an Area Manager from July 2018 (based in Burwood, New South Wales). He serviced both the Sydney Metro, and some regional/provincial areas. Prior to the Applicant’s dismissal, the Respondent employed six Area Managers (including the Applicant).

[19] Arising from the review and restructure, the Respondent determined that it would make one Area Manager role redundant. It selected the Applicant for redundancy on the basis that it considered the redistribution of the Applicant’s workload to other Area Managers the least disruptive to its operations.

[20] In relation to s.389(1)(a) of the Act, the Applicant does not challenge that there were genuine operational reasons for the Respondent’s decision to make an Area Manager position redundant. Rather, he complains that he (or his role) should not have been selected for redundancy, and/or that there were suitable available roles that he could have reasonably been redeployed into as an alternative to making him redundant. On the issue of the Applicant (or the Applicant’s Area Manager role) being selected for redundancy, I note that the selection of, or the process of selection, for redundancy is not a relevant consideration in determining whether a dismissal is a genuine redundancy under s.389 of the Act (see UES Int’l v Leevan Harvey [2012] FWAFB 5241, at [27]). As to whether, at the time of his dismissal, there were suitable available roles that the Applicant could have reasonably been redeployed into as an alternative to making him redundant, I deal with that issue later in this decision.

[21] All in all, I find that the evidence discloses that the Respondent had genuine operational reasons to make changes to its business, and that such changes (as determined by the Respondent) resulted in the Applicant’s job no longer being required to be performed by anyone. The fact that other employees, post the dismissal of the Applicant, performed the Applicant’s duties (via absorption into their own existing roles) does not, and cannot, give rise to the Applicant’s role (as in existence prior to his dismissal) continuing to exist. I thus find that the Respondent has complied with s.389(1)(a) of the Act.

Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy? (s.389(1)(b))

[22] The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the section “is not made out unless the various requirements of the relevant consultation clause are demonstrably discharged by the employer”. 13

[23] There is no dispute between the parties that no modern award or enterprise agreement applied to the Applicant’s employment with the Respondent. It follows that no question as to compliance with a modern award or enterprise agreement in relation to consultation about the Applicant’s dismissal (for reasons of redundancy) arises in these proceedings.

[24] In his evidence and submissions, the Applicant has sought to intermingle (or mix together) issues going to s.389(1)(b) of the Act, with issues under s.389(2) of the Act. I have previously pointed out the difficulty with such an approach:

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise? (s.389(2))

[25] Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to have been redeployed within the employer's enterprise, or an associated entity of the employer. The Respondent in this matter does not have any associated entities.

[26] The highest binding interpretation of s.389(2) remains that stated in Ulan Coal Mines Limited v A. Honeysett & Ors 15 (Honeysett):

“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

…

[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.

(emphasis added)

[27] It can been seen from the foregoing extract from Honeysett, that the reasonableness of redeployment for the purposes of s 389(2) of the Act is to be assessed as at the time of the relevant dismissal. 16 Further, in assessing the reasonableness of redeployment, it is necessary to identify the position or other work to which the employee could have been redeployed,17 and determine whether that position or other work is, for want of a better term ‘the right fit’ (or reasonable) for both the employer and the employee. Relevantly, s.389(2) of the Act does not:

[28] The conclusion of the Full Bench in Teterin v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine 18, as to the interaction between s.389(2) and s.385(d) of the Act, are also worth drawing attention to, as follows:

“The manner in which the Deputy President expressed his conclusions may be justified by reference to s.385(d), which requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed.” 19

[29] Similarly, in Jain v Infosys Ltd 20, the Full Bench said:

“… in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s.385 including paragraph (d) is not reached.” 21

[30] In asserting that redeployment was reasonable in all the circumstances, the Applicant gave the following evidence, and made the following contentions:

“15. Since my Unfair dismissal two of the Area Managers have resigned. Both Jared Richardson and Adam Sharpe have left the company.

16. Jason Steporowski states in his statement (point 15.) that he and the MTA NSW considered alternative positions for myself but at the time of my unfair dismissal, there was no suitable redeployment opportunities?

17. Email sent from HR to all staff including Area Managers on incentives to find training staff and would be paid a commission upon sign up of commencement, this was ongoing given we were constantly asked to appease members during our visits, as the lack of trainers was inconsistent due to many reasons and has never met the demands and the expectation of all members involved. This prior to Jason Steporowski commencement.

18. Jobs Advertised with different title same responsibilities just weeks out from unfair dismissal (Business Development manager, trainer attached)” 22

(emphasis original)

“The MTA and representative left an open question at the end of their response why I didn’t apply for the roles advertised after my unfair termination. I am happy to answer that I am a realist and I knew after they unfairly terminating my employment, they were never going to rehire me.” 23

[31] Mr Steporowski gave the following evidence in relation to the Applicant’s redeployment:

“3. The Applicant attaches to his submission job ads for trainers and a BDM role that he found in an online search conducted by him on 21 September 2022.

4. At the time of the Applicant's termination, the Respondent had three training roles available.

5. Two of the trainer roles were located in the ACT, one was for a Heavy Vehicle trainer, and one was for an Auto Electrical trainer. The third training role was located in Sydney and was a Panel and Paint trainer role. The Applicant did not have the relevant skills, qualifications or experience for the Panel and Paint, Heavy Vehicle or Auto Electrical trainer role. The Applicant had a Certificate in Automotive Light Vehicles but the Respondent was not hiring at the time for a trainer role in light vehicles. Further, any potential trainers need to have recent mechanic experience, including being exposed to the latest technology (while the Applicant held significant after sales roles in the motor industry, he had not worked as a mechanic since 1998).

6. The annual salary of $75,000 for these trainer roles was less than the Applicant's salary of $86,652 p.a. as an Area Manager.

7. The Applicant refers in his statement to job advertisement for a Business Development Manager (BDM) role. This role was not available, and was not advertised, at the time of the Applicant's termination. The BDM role position description is attached hereto and marked 'A'.

8. The Respondent subsequently created this BDM role as it was seeking to better utilise technology to enhance efficiency and to increase its digital reach, including utilising social media and a new Customer Relations Management (CRM) software. The BDM role required somebody who had current BDM experience and skills. The successful candidate for the BDM role was previously employed as a State Sales and Business Development Manager. As such, the successful candidate possessed the technical and digital expertise the Respondent required for the BDM role, such as experience in developing new leads and potential business opportunities, experience with CRM software and experience in data analysis, forecasting and budgeting.

9. Given the nature of the BDM role the salary, was significantly higher than that of an Area Manager.” 24

[32] The Respondent made the following submissions on the issue of the Applicant’s redeployment:

“7. The Applicant asserts the Respondent did not attempt to redeploy the Applicant in accordance with s 389(2) of the Act.

8. In particular, the Applicant asserts he was not considered for two roles (Business Development Manager and Trainer) with the Respondent that he found advertisements for when he did an online search on 21 September. This search was conducted some seven weeks after the Applicant's employment had been terminated.

9. The Respondent submits that the Business Development Manager (BDM) role was not available or advertised at the time that the Applicant's employment was terminated.

10. In any event, the Business Development Manager (BDM) role as the role was not suitable for the Applicant as it required somebody who has current BDM experience and skills.

11. The Respondent submits that the Applicant was not considered for redeployment to a training role as at the time of his termination, the training roles available with the Respondent were not suitable for the Applicant. The available training roles at the date of termination were for an auto electrical trainer, heavy vehicle trainer and panel and paint trainer. The Applicant did not have the relevant qualifications or experience to be a trainer in the available roles.

12. Furthermore, the auto electrical trainer and heavy vehicle trainer roles were located in the ACT when the Applicant lived in Miranda in New South Wales. Further, the salary for such a trainer role with the Respondent is significantly less than the salary the Applicant had been earning as an Area Manager.” 25

7. Mr Steporowski states in his Statement in Reply dated 24 October 2022 that the BDM position was not available at the time of the Applicant's termination. The Applicant brought no evidence to refute this statement.

8. The Applicant tried to suggest that the position was in the pipeline when his employment was terminated. The Applicant's answer to the Deputy Presidents question was telling:

"But where's your evidence that it was in the pipeline?  How do you say that?---Well, I'll tell you, I don't have any evidence of it"

9. The Applicant's only evidence as to whether roles were available at the time was job advertisements that he found when searching on Seek on 21 September 2022. The date that these advertisements were posted can be ascertained from the top left hand corner of the advertisements. It shows that the Business Development Manager (BDM) position was advertised on 19 September 2022 nearly two months after the Applicant's employment had been terminated.

10. The logical inference from this advertisement is that the BDM role became available some time after it was advertised and that it was not available at the date that the Applicant's employment was terminated. In those circumstances, the FWC can conclude that the BDM position identified by the Applicant for redeployment was not available at the time of the dismissal and that redeployment to that position was, therefore, not reasonable.

Suitability

11. The Respondent accepts that it had three trainer positions available at the date that the Applicant's employment was terminated, including the Trainer - Automotive Electrical position, for which the Applicant provided the Seek advertisement. The Respondent submits, however, that it would not have been reasonable to redeploy the Applicant to these trainer roles.

12. The Applicant maintained that he had been interested in cars since he was 15 years old. The CV he gave to the Respondent records that he last worked as a mechanic in 1998 and that he has not been remunerated as a mechanic since 1998.

13. Jason Steporowski's Statement in reply says:

"5. Two of the trainer roles were located in the ACT, one was for a Heavy Vehicle trainer, and one was for an Auto Electrical trainer. The third training role was located in Sydney and was a Panel and Paint trainer role. The Applicant did not have the relevant skills, qualifications or experience for the Panel and Paint, Heavy Vehicle or Auto Electrical trainer role. The Applicant had a Certificate in Automotive Light Vehicles but the Respondent was not hiring at the time for a trainer role in light vehicles. Further, any potential trainers need to have recent mechanic experience, including being exposed to the latest technology (while the Applicant held significant after sales roles in the motor industry, he had not worked as a mechanic since 1998)."

14. The Applicant brings no credible evidence to suggest that even if the positions had been available, that they would have been suitable for him. Not only did the Applicant have no qualifications as a trainer, he had no training or recent hand on experience for the classes of work for which the trainers were being employed.

15. For example, the Trainer – Automotive Electrical advertisement states under the heading “About the role” that “The role requires an individual with experience in the field of Automotive Electrical and holds the appropriate qualification. It is desirable that applicants have a minimum 5 years’ hands on experience in the particular area, to complement their training capacity”. The Applicant, however, has no experience in the field of Automotive Electrical (let alone the 5 year’s hands on experience sought) and does not hold the appropriate qualification.

16. Certificates are granted for different classes of work. To obtain a certificate, you must be trained and qualified in that specific area. The Applicant does not contend that he has a qualification as an auto electrician (for which he would need a Certificate III in Automotive Electrical Technology), or a qualification in Panel and Paint (for which he would need a Certificate III in Automotive Body Repair Technology). Without the relevant certificate, the Applicant would not be authorised to do those classes of work let alone train apprentices in those classes of work.

17. The Applicant's evidence was that he held a certificate as a tradesperson motor mechanic in NSW as evidenced by a copy of a card issued by Service NSW. In NSW, to obtain a certificate as a motor mechanic a person can either qualify for a Certificate III in Heavy Commercial Vehicle Mechanical Technology or a Certificate III in Light Vehicle Mechanical Technology. As indicated in Mr Steporowski's Statement in Reply, the Applicant's qualification was for Automotive Light Vehicles. While this did not technically prevent the Applicant from performing motor mechanic work on heavy vehicles, it meant that he had not undertaken the heavy vehicle course that the trainer position was to deliver. While the Applicant said that he had worked on heavy vehicles when he was doing his apprenticeship at Telecom in 1987 to 1991, this hardly qualifies him to deliver a course to apprentices on heavy vehicles. Further, as pointed out by Jason Steporowski, this experience could hardly be said to be current.

18. Even if the Applicant had a Certificate III in Heavy Commercial Vehicle Mechanical Technology, or current experience with heavy vehicles, the position was located in the ACT. The Applicant gives no evidence that he is certified as a motor mechanic in the ACT.

19. Mr Steporowski's evidence was that the Respondent requires that the trainers that they employ live in the regions that they service and that the Applicant does not meet this criterion as he lives in Miranda in NSW.

20. Had the Respondent redeployed the primary location of the Applicant's job from Burwood in NSW to the ACT, the Respondent submits that it is unlikely that the FWC would consider such a redeployment to be reasonable. It would have been about a 250 kilometre trip each way for the Applicant, being approximately a 6 hour return drive each day from his home in Miranda in Sydney.

Additionally, the annual salary of $75,000 for these trainer roles was significantly less than the Applicant's salary of $86,652 p.a. as an Area Manager.

22. With the BDM role, Jason Steporowski's Statement in reply says:

"7. The Applicant refers in his statement to job advertisement for a Business Development Manager (BDM) role. This role was not available, and was not advertised, at the time of the Applicant's termination. The BDM role position description is attached hereto and marked 'A'.

8. The Respondent subsequently created this BDM role as it was seeking to better utilise technology to enhance efficiency and to increase its digital reach, including utilising social media and a new Customer Relations Management (CRM) software. The BDM role required somebody who had current BDM experience and skills. The successful candidate for the BDM role was previously employed as a State Sales and Business Development Manager. As such, the successful candidate possessed the technical and digital expertise the Respondent required for the BDM role, such as experience in developing new leads and potential business opportunities, experience with CRM software and experience in data analysis, forecasting and budgeting

9. Given the nature of the BDM role the salary, was significantly higher than that of an Area Manager."

23. It is not clear as to whether the Applicant is even contending that the BDM role would be suitable for him. The nature of the role, involving the use of technology to develop business, appears completely different to the Area Manager role where he was on the road visiting the Respondent's members. He certainly provided no evidence that he possesses any skills or experience for such a role. There is no evidence either of any qualifications in sales, let alone the required Diploma. Unlike the Area Manager role where he would visit members in the southern region from his home at Miranda, the BDM role would be primarily based at the Respondent's Burwood office. The remuneration offered for the BDM role was also significantly higher than for the Area Manager role.

24.As a final note, it is telling that, despite being aware that these roles were vacant, the Applicant chose not to apply for them.” 26

(footnotes omitted)

[33] Having regard to the evidence, and the submissions of the parties, I make the following findings:

[34] In view of my findings and conclusions, as set out in the foregoing paragraph, I find that it would not have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise at the time of his dismissal. I thus find that the Respondent has complied with s.389(2) of the Act.

Other matters

[35] In providing these reasons for decision, it is also appropriate that I make some observations as to the Applicant’s other assertions as to his dismissal and redundancy, as follows:

Summary of findings

[36] Having regard to the evidence and submissions of the parties, I have made the following findings:

(a) As at the time that the Respondent made the decision to make the Applicant’s job (as Area Manager) redundant, this job was genuinely no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise (s.389(1)(a) of the Act).

(b) No consultation obligations under a modern award or enterprise agreement applied to the Applicant’s employment with the Respondent (s.389(1)(b) of the Act).

(c) There were no available or suitable positions at the Respondent that the Applicant could have reasonably (in all the circumstances) been redeployed into at or about the time of his dismissal (s.389(2) of the Act).

Conclusion

[37] The Respondent has made good its case as to genuine redundancy. Accordingly, the Applicant’s dismissal is not one which the Commission has the power to interfere with under the Act. His Application is therefore dismissed. An order to this effect will follow the publication of this decision.

al of Deputy President Boyce

DEPUTY PRESIDENT

Appearances:

Mr Peter Dupesovski (the Applicant), appeared for himself.

Mr Tim McDonald, Partner, McCabe Lawyers, appeared with permission for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR748522>

 1   See Transcript, PN4-PN12. The Applicant did not oppose permission for the Respondent to be legally represented.

 2   Exhibit R1.

 3   Exhibit R2.

 4   Exhibit A1.

 5   Ulan Coal Mines Limited v Henry Jon Howarth & Ors [2010] FWAFB 3488, at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.

 6   (1996) 69 IR 370.

 7   Ibid, at 373.

 8   [2014] FWC 7829.

 9   Ibid, at [16]. Cited with approval in Adams v Blamey Community Group [2016] FWCFB 7202, at [14].

 10   Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674, at [27].

 11   [2004] FCAFC; (2004) 136 FCR 388.

 12   Ibid, at [43]-[44].

 13   Maxwell v Bardrill Corporation Ltd [2015] FWC 4019, at [40]-[41].

 14   Peter Davison v DHL Supply Chain (Australia) Pty Ltd [2021] FWC 4573, at [48].

 15   [2010] FWAFB 3488; (2010) 199 IR 363.

 16   See also Technical and Further Education Commission v Pykett [2014] FWCFB 714 (2014) 240 IR 130, at [35].

 17   Ibid, at [34], [36], [38]–[40].

 18   [2014] FWCFB 4125; (2014) 244 IR 252.

 19   Ibid, at [31(2)]. See also at [26].

 20   [2014] FWCFB 5595.

 21   Ibid, at [35].

 22   Exhibit A1, Applicant Statement, 17 October 2022, at [15]-[18].

 23   Applicant’s Closing Written Submissions, 18 November 2022.

 24   Exhibit R2, Steporowski Statement, 24 October 2022, at [3]-[9].

 25   Respondent’s Outline of Submissions In Reply, undated, at [7]-[12].

 26   Respondent’s Closing Submissions, 11 November 2022, at [4], and [7]-[24].