1
Fair Work Act 2009
s.394—Unfair dismissal
Bianca Mamo
v
Life Streaming Pty Ltd
(U2023/8732)
COMMISSIONER CRAWFORD SYDNEY, 27 MARCH 2024
Application for relief from unfair dismissal – dismissal not consistent with Small Business
Fair Dismissal Code - dismissal unfair – compensation ordered
Background
[1] Andrew MacDonald (Mr MacDonald) set up a business as a sole trader using the
business name, Asset Footage, in around 2019. The business provided live streaming services
for funerals and other events. Bianca Mamo (Ms Mamo) was employed in this business. Life
Streaming Pty Ltd (Life Streaming) was incorporated on 21 September 2021 to carry on the
live streaming operations of the Asset Footage business. Mr MacDonald is a director and
employee of Life Streaming. Ms Mamo was the Company Secretary and an employee. The
Broadcasting, Recorded Entertainment and Cinemas Award 2020 (Award) applied to Ms
Mamo’s employment with Life Streaming.
[2] Ms Mamo and Mr MacDonald were also in a close personal relationship for around six
and a half years and lived together with their respective families until mid-August 2023.
[3] Ms Mamo was summarily dismissed by Life Streaming on 2 September 2023 for serious
misconduct. The alleged serious misconduct involved:
a. Making 12 unauthorised transfers from Life Streaming’s bank accounts for personal
reasons from 21 June 2023 to 16 August 2023.
b. Changing the password to Life Streaming’s email account on 17 August 2023 to prevent
Mr MacDonald from accessing the account and to prevent Mr MacDonald from
operating the business.
[4] On 12 September 2023, Ms Mamo made an application to the Fair Work Commission
(Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging
that she was unfairly dismissed from her employment with Life Streaming.
[2024] FWC 780
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 780
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[5] Life Streaming filed a Form F3 employer response form on 26 September 2023. In the
employer response form, Life Streaming raised two jurisdictional objections. Life Streaming
argued Ms Mamo had not completed the minimum employment period of 12 months1 when she
was dismissed on 2 September 2023. Life Streaming also argued the dismissal was consistent
with the Small Business Fair Dismissal Code (SBFDC).
[6] Life Streaming subsequently accepted Ms Mamo had completed the minimum
employment period but pressed its objection concerning compliance with the SBFDC.
[7] There being contested facts involved, the Commission is obliged by s.397 of the FW
Act to conduct a conference or hold a hearing.
[8] I issued directions for the filing of material and initially listed the application for
determinative conference/hearing on 11 December 2023. That listing was vacated so that new
directions could be set after Life Streaming withdrew its minimum employment period
jurisdictional objection. The determinative conference/hearing was relisted for 28 February
2023 via video.
[9] Ms Mamo represented herself at the determinative conference/hearing on 28 February
2023. I granted permission for Life Streaming to be represented by Cameron Niven from Taylor
Rose Lawyers. I was satisfied granting permission would enable the matter to be dealt with
more efficiently, given its complexity.
[10] At the commencement of the proceeding on 28 February 2024, I indicated my
provisional view was that the proceeding should be conducted as a determinative conference
rather than a hearing because Ms Mamo was representing herself and is also a witness. The
parties did not oppose my provisional view. The proceeding was conducted as a determinative
conference.
[11] During the determinative conference on 28 February 2024, it emerged that additional
relevant evidence from Ms Mamo regarding her earnings since dismissal could be provided,
and that Mr MacDonald could provide additional evidence concerning transactions from Life
Streaming’s bank accounts. I decided to adjourn to allow this further evidence to be filed and
to continue the determinative conference on 14 March 2024. This approach was not opposed
by the parties.
[12] Ms Mamo continued representing herself at the determinative conference on 14 March
2024 and Mr Niven continued representing Life Streaming.
Material relied upon
Ms Mamo
[13] Ms Mamo relied on the following evidence in her support of her application:
• Ms Mamo’s Form F2 unfair dismissal application dated 12 September 2023. I marked
this as an exhibit because it contained evidence from Ms Mamo about her dismissal. I
marked the application form Exhibit A1.
[2024] FWC 780
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• Ms Mamo’s termination letter dated 2 September 2023. I marked the letter Exhibit
A2.
• A letter from Life Streaming to Ms Mamo dated 24 August 2023 which outlines
allegations of serious misconduct against Ms Mamo. I marked the letter Exhibit A3.
• An outline of submissions filed by Ms Mamo on 12 January 2024. The submissions
contain evidence from Ms Mamo. I marked the submissions Exhibit A4.
• Reply submissions filed by Ms Mamo on 12 January 2024. The reply submissions
contain evidence from Ms Mamo. I marked the reply submissions Exhibit A5.
• A bank statement for Ms Mamo’s St George bank account for the period of 2 August
2023 to 1 September 2023. I marked the statement Exhibit A6.
• An apprenticeship/traineeship training contract relating to Ms Mamo’s employment
with Life Streaming dated 15 June 2022. I marked the contract Exhibit A7.
• An ABN record for Mr MacDonald. I marked the record Exhibit A8.
• Documents containing a series of screenshots of text messages between Ms Mamo and
Mr MacDonald from 27 July 2023 to 16 August 2023. Ms Mamo has provided
commentary on the messages on the same documents. I marked these documents
Exhibit A9.
• A document containing further evidence from Ms Mamo regarding the end of her
employment with Life Streaming. I marked this document Exhibit A10.
• A document containing screenshots of email account information including prompts
to enter a password for the events@lifestreaming.au account. I marked this document
Exhibit A11.
• A copy of emails between Ms Mamo and Mr MacDonald on 29 August 2023. The
emails relate to the breakdown of their personal and professional relationships. Mr
MacDonald invited Ms Mamo to attend a meeting on Saturday, 2 September 2023
concerning the allegations of serious misconduct. Ms Mamo declined to attend the
meeting. I marked the emails Exhibit A12.
• A bank statement for Ms Mamo’s St George bank account for the period of 2 July
2023 to 1 August 2023. I marked the statement Exhibit A13.
• A covering explanatory document and a copy of a bank statement from Ms Mamo’s
St George bank account for the period of 26 August 2023 to 25 February 2024. I
marked these documents Exhibit A14.
[14] Ms Mamo was cross-examined on this evidence at both determinative conferences.
mailto:events@lifestreaming.au
[2024] FWC 780
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[15] Ms Mamo also made oral submissions during both determinative conferences. I have
taken those submissions into account, in addition to the parts of the written material filed by
Ms Mamo which would be characterised as submissions rather than evidence.
Life Streaming
[16] Life Streaming relied on the following evidence in opposing the application:
• Witness statement from Mr MacDonald dated 27 November 2023. The statement
contained the following attachments:
- AM 1: Screenshots of text messages between Mr MacDonald and Ms
Mamo on or around 2 August 2023.
- AM 2: Screenshots containing security information about Life
Streaming’s email account, a screenshot of an email forwarded from Life
Steaming’s email account to Ms Mamo and a text message between Mr
MacDonald and Ms Mamo.
- AM 3: NAB bank statements for Life Streaming’s business account for
the period of 22 April 2023 to 20 August 2023.
- AM 4: NAB bank statements for Life Streaming’s GST account for the
period of 22 May 2023 to 20 August 2023.
- AM 5: Emails exchanged by Mr MacDonald and Ms Mamo on 24 and
25 August 2023 concerning the breakdown of their personal and
professional relationships.
- AM 6: A copy of Ms Mamo’s termination letter dated 2 September 2023.
- AM 7: Screenshots of text messages between Mr MacDonald and Ms
Mamo concerning the end of their personal and professional relationship.
- AM 8: A copy of Ms Mamo’s St George bank account statement for the
period of 2 August 2023 to 1 September 2023.
I marked Mr MacDonald’s statement, and the attachments, Exhibit R1.
• Second witness statement of Mr MacDonald dated 16 February 2024. The statement
contained the following attachments:
- AM 9: A copy of bank records which demonstrate Ms Mamo paid her
wages from Life Streaming’s business account on six or seven occasions.
- AM 10: A screenshot of text messages between Mr MacDonald and Ms
Mamo on 27 July 2023 regarding Life Streaming jobs on 28 July 2023 at
Blacktown and Sans Souci.
[2024] FWC 780
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- AM 11: A copy of extracts from Mr MacDonald’s personal bank account
which demonstrate he personally paid for flights taken by Ms Mamo and
her children in July 2023.
- AM 12: NAB bank account statements for Life Streaming’s business
account for the period of 22 April 2023 to 20 August 2023.
I marked Mr MacDonald’s second witness statement Exhibit R2.
• A third statement from Mr MacDonald dated 6 March 2024. The statement contained
the following attachments:
- NAB bank account statements for Life Streaming’s business and GST
accounts for the period of 16 February 2023 to 29 December 2023.
- A document recording director loan transactions between Mr MacDonald
and Life Streaming for the period of 6 March 2023 to 15 December 2023.
- A document that records payroll transactions from Life Streaming to Ms
Mamo for $2,200.00 and $500.00 on 26 July 2023.
- A copy of several text messages and an email between Mr MacDonald
and Ms Mamo in June, July, August and September 2023.
- A Qudos bank statement that shows payments made by Mr MacDonald
for a Volvo vehicle and a van.
I marked Mr MacDonald’s third statement Exhibit R3.
[17] Mr MacDonald was cross-examined on his evidence by Ms Mamo at both determinative
conferences.
[18] In addition to its Form F3 employer response form, Life Streaming relied on written
submissions dated 27 November 2023, 16 February 2024 and 6 March 2024. Mr Niven also
made oral submissions during both determinative conferences. I have taken all the written and
oral submissions into account.
When can the Commission order a remedy for unfair dismissal?
[19] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) Ms Mamo was protected from unfair dismissal at the time of being dismissed;
and
(b) Ms Mamo has been unfairly dismissed.
[2024] FWC 780
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[20] Both limbs must be satisfied. I am therefore required to consider whether Ms Mamo was
protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms
Mamo was so protected, whether Ms Mamo has been unfairly dismissed.
When is a person protected from unfair dismissal?
[21] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[22] Section 385 of the FW Act provides that a person has been unfairly dismissed if the
Commission is satisfied that:
(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable;
(c) the dismissal was not consistent with the SBFDC; and
(d) the dismissal was not a case of genuine redundancy.
Was Ms Mamo dismissed?
[23] There was no dispute and I find that Ms Mamo’s employment with Life Streaming
terminated at the initiative of Life Streaming effective 2 September 2023. Ms Mamo initially
identified a dismissal date of 9 September in her Form F2 application. However, Ms Mamo
accepted this was an error and that her summary dismissal took effect on 2 September 2023 in
accordance with the termination letter.
[24] I am therefore satisfied that Ms Mamo has been dismissed within the meaning of
s.385(a) of the FW Act.
Initial matters
[2024] FWC 780
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[25] Under s.396 of the FW Act, the Commission is obliged to decide the following matters
before considering the merits of the application:
(a) whether the application was made within the period required in subsection
394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
[26] It is not disputed and I find that Ms Mamo’s application was filed within the relevant
21-day period, and she was protected from unfair dismissal based on her length of service. Ms
Mamo’s employment with Life Streaming was covered by the Award and her earnings were
well below the high-income threshold. Life Streaming has not argued Ms Mamo’s dismissal
was a case of genuine redundancy.
[27] There is no dispute between the parties that Life Streaming had only two employees
prior to Ms Mamo’s dismissal on 2 September 2023. As a result, Life Streaming falls within
the definition of a “small business”. Life Streaming has argued Ms Mamo’s dismissal was
consistent with the SBFDC. I must determine this issue before considering the merits of the
application. However, I will first make some findings in relation to the evidence.
Findings on the evidence
[28] I find the following matters are clear from the evidence:
a. Mr MacDonald and Ms Mamo were living together with their respective families
when Mr MacDonald established a live streaming business, which he initially
operated as a sole trader, and then operated via Life Streaming from when the
company was incorporated on 21 September 2021.
b. Mr MacDonald and Ms Mamo were concurrently in personal and professional
relationships from when Ms Mamo’s employment with Life Streaming
commenced on 21 September 2021 until around 25 July 2023. Ms Mamo had
service with Mr MacDonald operating as a sole trader prior to 21 September
2021.
c. Mr MacDonald has a director loan arrangement with Life Streaming. Mr
MacDonald loaned the business a total of $60,859.89 from 6 March 2023 until
15 December 2023. During this period the loan was reduced by a total of
$33,359.50 because of money in Life Streaming’s accounts being used for
personal transactions, or because money was withdrawn from the business by
Mr MacDonald.
[2024] FWC 780
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d. Mr MacDonald and Ms Mamo’s personal relationship broke down on around 25
July 2023. Ms Mamo moved out of the family home on 13 August 2023. The
breakdown of the relationship involved significant hostility which remained
during these proceedings.
e. Mr MacDonald issued a letter to Ms Mamo on 24 August 2023 which alleged
she had made 12 unauthorised transactions from Life Streaming’s bank accounts
from 21 June 2023 until 16 August 2023. The letter also alleged Ms Mamo had
attempted to prevent Mr MacDonald from operating the Life Streaming business
on 17 August 2023 via changing the password for its email account.
f. Mr MacDonald invited Ms Mamo to a meeting on 2 September 2023 to discuss
the allegations of serious misconduct. Ms Mamo declined to attend the meeting
for various reasons including because she considered the accusations were
“fake”. Given Ms Mamo’s refusal to attend the meeting, Mr MacDonald sent the
termination letter on 2 September 2023.
[29] Most other significant evidentiary matters are contested by the parties. I consider the
critical issues are:
1. Whether I accept Mr MacDonald or Ms Mamo’s evidence regarding the use of
funds in Life Streaming’s bank accounts for personal expenditure.
2. Whether I accept Ms Mamo’s evidence about why she changed the password on
Life Streaming’s email account on 17 August 2023.
These matters are critical because they go to whether or not the alleged misconduct occurred
and constituted a reason for dismissal.
Use of Life Streaming’s funds for personal expenditure
[30] According to Mr MacDonald, it was always clearly understood by Ms Mamo that money
held in Life Streaming’s business and GST accounts could only be used for work-related
purposes. Mr MacDonald indicated he would regularly seek advice from his accountant
regarding whether certain transactions could be claimed as work expenses. If the accountant
indicated a transaction could not be claimed as work-related, Mr MacDonald would generally
make an adjustment via the director loan arrangement. Mr MacDonald referred to various
messages and emails where he raised concerns about Ms Mamo’s use of Life Streaming’s funds
in support of his position.
[31] According to Ms Mamo, Life Streaming was a small “Mum and Dad-type” business and
there was considerable overlap between the business and personal transactions. For example,
Ms Mamo gave evidence that her wage rate of $2,200 gross per fortnight had been deliberately
set to cover the rent payments of $1,100 per week for the home Mr MacDonald and Ms Mamo
lived in. This left Ms Mamo reliant on payments from Mr MacDonald’s personal account or
her side business to support herself and her family. Ms Mamo argued it had been common for
Life Streaming funds to be used for personal expenditure by both Mr MacDonald and by Ms
Mamo. Ms Mamo raised several transactions going to this point with Mr MacDonald during
[2024] FWC 780
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cross-examination, including spending on meals and drinks at pubs, a uniform for Mr
MacDonald’s son and the purchase of a whiskey decanter set. Ms Mamo claimed Mr
MacDonald was aware that Life Streaming’s funds were used to purchase tickets for her trip to
Europe because he was sitting next to Ms Mamo when she made the bookings. In relation to
the expenditure of $3,262.81 to Agoda for accommodation in London, Ms Mamo’s evidence
was that Mr MacDonald was concerned about the high price of this hotel, as opposed to being
more broadly concerned that Life Streaming’s funds were being used for accommodation
expenses. Ms Mamo did not generally contest that the 12 transactions did not relate to the work
of Life Streaming, although the situation was less clear in terms of whether the expenses for
international travel could be claimed as work expenses.
[32] On balance, I prefer Ms Mamo’s evidence to that of Mr MacDonald regarding whether
she clearly understood that the money in Life Streaming’s accounts could only be used for
work-related expenditure. Although it is generally obvious that an employee cannot use their
employer’s money for personal expenses, the facts of this case make the assessment of Ms
Mamo’s behaviour far more complicated than would ordinarily be the case. I have significant
doubts about the evidence Mr MacDonald gave regarding spending money on food and drinks
associated with a Qantas event to try and generate business for Life Streaming while he was in
the area. I also have significant doubts about Mr MacDonald’s evidence that he used Life
Streaming’s money for the purchase of a whiskey decanter, which he then used for some time,
only to later wash it and give it to a customer as a gift, because he became aware it was not a
legitimate business expense. I am also conscious that Mr MacDonald had considerable notice
that he would be cross-examined on various transactions by Ms Mamo and had an opportunity
to review each transaction and identify an explanation for the transaction. Despite this notice, I
did not find several of Mr MacDonald’s explanations to be convincing. I also do not accept Mr
MacDonald’s evidence that Ms Mamo’s wage rate was not set to precisely match the rental
payments for the house they were living in. I think the suggestion that this was a coincidence
lacks merit, particularly given Mr MacDonald paid himself $2,200 from Life Streaming’s
business account on 28 August 2023. That transaction is consistent with Mr MacDonald now
needing to make the rental payments of $1,100 per week because Ms Mamo had moved out.
[33] I also consider the email Mr MacDonald sent Ms Mamo on 24 August 2023 to be
significant.2 Although some attempt is made by Mr MacDonald in the email to separate the
employment and personal relationships, it is clear Mr MacDonald was proposing a resolution
of their family law issues that included Ms Mamo walking away from her employment and
company secretary position with Life Streaming. This email highlights the extensive overlap
between the two relationships and that Mr MacDonald was effectively using the business and
employment arrangements as leverage in family law negotiations. If Ms Mamo had agreed to
the proposed property distribution with Mr MacDonald, it appears highly doubtful that she
would have been dismissed by Life Streaming. It is also clear that Mr MacDonald was prepared
to overlook the transactions if Ms Mamo agreed to resign from her employment.
[34] I accept Ms Mamo’s evidence that the transactions identified by Mr MacDonald prior
to the breakdown of their personal relationship are explained by the considerable overlap
between the personal and professional relationships. I accept there was a significant degree of
informality regarding the operation of the business because of the overlapping relationships. I
consider the informality is highlighted by the fact Ms Mamo was apparently engaged as an
apprentice, but Mr MacDonald’s evidence included that he did all the work for the business and
[2024] FWC 780
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Ms Mamo lacked technical competence. I consider the transactions around the time of the
relationship breaking down to be part of the deteriorating personal relationship, as opposed to
being deliberate misconduct by Ms Mamo as an employee of Life Streaming. I accept Ms
Mamo’s evidence that she felt desperate at this time and considered she needed to access
whatever money she could from Mr MacDonald to support her children. Even though the
money was transferred from Life Streaming’s accounts, I find that the conduct occurred as part
of the breakdown of the personal relationship, as opposed to being Ms Mamo’s actions as an
employee of Life Streaming. I make that finding in the context of my earlier finding that the
boundaries between business and personal expenditure were not clear between Mr MacDonald
and Ms Mamo. I accept the distinction is fine, but I consider Ms Mamo was acting as a
disgruntled partner, as opposed to an employee that wanted to damage the Life Streaming
business. Ms Mamo’s emails on 29 August 2023 are consistent with this finding because she
was raising concerns about Life Streaming losing clicks and interest on its Facebook page,
despite the breakdown of the personal relationship and the allegations against her.
[35] I consider it is appropriate to note that it is clear from the bank account statements that
most transactions in Life Streaming’s accounts relate to business revenue and expenditure. It is
also clear that Mr MacDonald takes the distinction between business and personal expenditure
seriously and has set up a director loan arrangement to deal with any overlap between business
and personal expenditure. However, I consider there was a reasonably flexible approach to these
issues while the close personal relationship remained on foot, and that when the relationship
ended, Mr MacDonald perhaps understandably determined the flexibility could not continue. I
consider Ms Mamo’s conduct as an employee must be assessed in that context. I do not accept
conduct from an employee that was overlooked when a close personal relationship existed can
then provide grounds for summary dismissal, simply because the personal relationship has
ended. The situation may have been different if Life Streaming put Ms Mamo on notice that
given the breakdown in her personal relationship with Mr MacDonald, Life Streaming would
be applying strict rules regarding the use of its funds. Although the text messages Mr
MacDonald sent Ms Mamo raising concerns about her expenditure after the personal
relationship had ended are relevant, I do not consider they constitute notice of a change in
approach from Life Streaming because they do not go far enough to identify that prior treatment
of finances tolerated in the context of a personal relationship would no longer be tolerated once
the personal relationship ended.
The password change for the email account
[36] Ms Mamo provided the following evidence concerning the allegation she had attempted
to lock Mr MacDonald out of Life Streaming’s email account:
“The email accusation is also incorrect, I have always had full access to
events@lifestreaming.au. When I logged on, it requested a password, I went in and put
in our password, it prompted me to ‘reset password’ to gain access, I followed the
prompts. Within a short amount of time, I had lost all access to the business emails. I am
not sure why the Respondent is stating the 17th, which doesn’t make sense as I was
working on a fundraiser for the business. I was was sending the email trying to send the
email out with no idea that I was locked out and was trying to get this email out to the
Fundraiser on the 23rd of August 2023. It was in my sent items and yet the recipient
kept saying she hadn’t received it. …Seems I thought I had access but it was taken away
[2024] FWC 780
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a while back, the only time I sent an email to know about this was to my daughters
school for the fundraiser.
ii. In short, The Respondent had changed the password on me. I logged back in to
continue my work and he then went into the back end of our domain and changed it
forever, I have not tried to access it since. There was nothing sinister about me logging
in. The Respondent had agreed for me to do this fundraiser, via our email and logo. The
recipient then received our logo’d voucher via bianca.mamo@gmail.com
iii. Please see the prompt I got on the day I entered our password and am still getting
daily from Google to ‘update my password’ for lifestreamin.au'. I had no intention what
so ever of locking The Respondent out. Annex G - Photo’s of consistent Google
Prompt’s - to update password,”3
[37] However, Mr MacDonald provided evidence to establish the password for the email
account was changed at 1:04pm by Ms Mamo and that she added her phone number as a
recovery phone number.4 Ms Mamo forwarded eight emails to her private email account after
she changed the password. Mr MacDonald was able to regain access to the account and
rechange the password at 1:17pm.
[38] I do not accept Ms Mamo has provided a satisfactory explanation for why she changed
the password to Life Streaming’s email account on 17 August 2023 and then forwarded eight
emails to her personal email account. Although Ms Mamo provided evidence that she had been
previously requested to enter the password for the email account,5 I do not consider that explains
why she changed the password on 17 August 2023. I consider the most likely explanation is Ms
Mamo deliberately changed the password as part of the breakdown in her personal relationship
with Mr MacDonald.
Was Ms Mamo’s dismissal consistent with the Small Business Fair Dismissal Code?
[39] Life Streaming summarily dismissed Ms Mamo for alleged serious misconduct on 2
September 2023.
[40] In Pinawin v Domingo (2012) 219 IR 128, a Full Bench of then Fair Work Australia
stated the following concerning the test to be applied for summary dismissal under the Small
Business Fair Dismissal Code at [29]:
“There are two steps in the process of determining whether this aspect of the
Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief that the
employee’s conduct was sufficiently serious to justify immediate dismissal.
Secondly it is necessary to consider whether that belief was based on reasonable
grounds. The second element incorporates the concept that the employer has carried out
a reasonable investigation into the matter. It is not necessary to determine whether the
employer was correct in the belief that it held.”
mailto:bianca.mamo@gmail.com
[2024] FWC 780
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[41] I consider Mr MacDonald formed a view that Ms Mamo’s employment with Life
Streaming needed to end, given the breakdown in their relationship. Mr MacDonald stated in
an email on 29 August 2023 that: “your employment as an apprentice can not continue in any
case.” Mr MacDonald gave evidence that he initially sought information about whether he could
lawfully make Ms Mamo’s position redundant. That is consistent with Mr MacDonald
searching for a trigger to end the employment relationship because the personal relationship
had ended in acrimonious circumstances. I consider Mr MacDonald then formed a view that
Ms Mamo’s expenditure from Life Streaming’s account and her conduct in changing the
password for its email account provided a sufficient trigger to end the employment relationship.
Mr MacDonald then implemented what was effectively a show cause and dismissal process and
terminated Ms Mamo’s employment for serious misconduct on 2 September 2023.
[42] I accept the first step in the assessment of whether Ms Mamo’s summary dismissal was
consistent with the SBFDC is satisfied in this case. I accept Life Streaming through its director
Mr MacDonald held a belief that Ms Mamo’s conduct was sufficiently serious to justify
immediate dismissal.
[43] However, I am not satisfied that Life Streaming’s belief through its director Mr
MacDonald was held on reasonable grounds. I have found that Ms Mamo’s conduct in relation
to the 12 transactions she processed from Life Streaming’s account did not constitute
misconduct within the employment relationship. I have found the transactions processed prior
to the relationship breakdown were effectively condoned by Life Streaming, and that the
subsequent transactions occurred as part of a family law dispute, rather than the employment
relationship, given the extensive intermingling of the two relationships and Mr MacDonald’s
email dated 24 August 2023.
[44] Although I have found Ms Mamo deliberately changed the password for Life
Streaming’s email account on 17 August 2023, I consider that step was primarily taken against
Mr MacDonald personally, as opposed to Life Streaming. The sending of eight emails by Ms
Mamo to her personal account suggests to me she was positioning for a dispute about ownership
of the business, as opposed to trying to damage the operations of Life Streaming. I consider Ms
Mamo’s emails on 29 August 2023 regarding concerns about Life Streaming’s Facebook
account to be consistent with this interpretation. Given the hostile breakdown of the close
personal relationship between Ms Mamo and Mr MacDonald, I do not consider Ms Mamo’s
actions on 17 August 2023 provide reasonable grounds for a belief that the conduct was
sufficiently serious to justify immediate dismissal.
[45] I also do not accept Life Streaming carried out what I would consider to be a “reasonable
investigation into the matter.” Given the hostile breakdown of the close personal relationship
between Mr MacDonald and Ms Mamo, I do not consider it was appropriate for Mr MacDonald
to be investigating Ms Mamo’s conduct. I consider Mr MacDonald was not able to conduct an
impartial and independent investigation process. Whilst I have considered that what is
reasonable requires consideration of the experience and resources of the small business
concerned,6 I nonetheless consider the circumstances dictated that an external party should have
conducted the investigation so Mr MacDonald and Ms Mamo’s evidence could be fairly
assessed.
[2024] FWC 780
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[46] I am not satisfied that Ms Mamo’s dismissal was consistent with the SBFDC because
Life Streaming’s belief that Ms Mamo’s conduct was sufficiently serious to justify immediate
dismissal was not based on reasonable grounds. I dismiss Life Streaming’s jurisdictional
objection.
[47] Having considered each of the initial matters and found Ms Mamo’s dismissal was not
consistent with the SBFDC, I am required to consider the merits of Ms Mamo’s application.
Was the dismissal harsh, unjust or unreasonable?
[48] Section 387 of the FW Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[49] I am required to consider each of these factors, to the extent they are relevant to the
factual circumstances before me.7
[50] I set out my consideration of each below.
Was there a valid reason for the dismissal related to Ms Mamo’s capacity or conduct?
[51] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 However,
[2024] FWC 780
14
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.10
[52] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.11 The question of whether the alleged
conduct took place and what it involved is to be determined by the Commission on the basis of
the evidence in the proceedings before it. The test is not whether the employer believed, on
reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which
resulted in termination.12
[53] I have found that Ms Mamo’s conduct in processing 12 transactions from Life
Streaming’s bank accounts for personal purposes does not constitute misconduct in the
employment relationship. I have found the conduct was effectively condoned by Life Streaming
prior to the breakdown of the close personal relationship between Ms Mamo and Mr
MacDonald. Life Streaming attempted to apply a different approach to the expenditure after the
breakdown, without putting Ms Mamo on notice that this would occur. While past condoning
of conduct is not automatically determinative of whether similar conduct later constitutes a
valid reason for dismissal, it is a relevant consideration.13 I consider it to be a significant
consideration in this case given the interrelatedness of professional and personal matters. I also
consider Ms Mamo’s actions after the relationship broke down to primarily have occurred as
part of a broader family law dispute as opposed to the employment relationship.
[54] Although I have found Ms Mamo deliberately changed the password to Life Streaming’s
email account on 17 August 2023, I have found that this step was taken primarily against Mr
MacDonald in his personal capacity as opposed to being against Life Streaming as a
corporation. I am not satisfied Ms Mamo was attempting to cause damage to the company when
she took this step.
[55] Given these findings, I do not accept there was a valid reason for Ms Mamo’s dismissal.
Was Ms Mamo notified of the reason for dismissal?
[56] Proper consideration of s.387(b) requires a finding to be made as to whether Ms Mamo
“was notified of that reason”. Contextually, the reference to “that reason” is the valid reason
found to exist under s.387(a).14
[57] 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,15 and in
explicit16 and plain and clear terms.17
[58] As I am not satisfied that there was a valid reason for dismissal, this factor is not strictly
relevant to the present circumstances.18
[59] However, if I had found there was a valid reason for dismissal, I would have found that
Ms Mamo was notified of the reason for her dismissal prior to a final decision being made by
Life Streaming. Mr MacDonald’s letter dated 24 August 2023 put Ms Mamo clearly on notice
of the allegations against her and constituted adequate notice of the reason for dismissal.
[2024] FWC 780
15
Was Ms Mamo given an opportunity to respond to any valid reason related to her
capacity or conduct?
[60] 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.19
[61] 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.20 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.21
[62] As I have not found that there was a valid reason for dismissal, this factor is not strictly
relevant to the present circumstances.22
[63] However, if I had found there was a valid reason for dismissal, I would have found that
Ms Mamo was not given an opportunity to respond to the reason for her dismissal.
[64] An opportunity to respond must be genuine. An employer cannot merely pay ‘lip
service’ to giving an employee an opportunity to respond to allegations.23 Rather, an
opportunity to respond “implies an opportunity that might result in the employer deciding not
to terminate the employment if the defence is of substance.”24 Taking into account the
breakdown of the personal relationship between Ms Mamo and Mr MacDonald, I am not
satisfied in the circumstances Ms Mamo had a genuine opportunity to respond such that, had a
valid explanation been provided, an alternative outcome was possible. I consider Life Streaming
would have needed to engage an external party to consider any responses provided by Ms
Mamo to the allegations of misconduct. Mr MacDonald was clearly compromised in terms of
assessing Ms Mamo’s responses because of the breakdown in their personal relationship. I do
not consider it matters that Ms Mamo refused to attend the meeting on 2 September 2023, given
this was a proposed meeting only with Mr MacDonald.
Did Life Streaming unreasonably refuse to allow Ms Mamo to have a support person
present to assist at discussions relating to the dismissal?
[65] I do not consider Life Streaming unreasonably refused to allow Ms Mamo to have a
support person at any meetings. Mr MacDonald’s email dated 29 August 2023 indicated he was
planning to arrange a support person if Ms Mamo confirmed she was attending the meeting. I
consider it extremely unlikely that Ms Mamo would have been prevented from bringing a
support person in those circumstances.
Was Ms Mamo warned about unsatisfactory performance before the dismissal?
[66] As the dismissal related to alleged misconduct rather than unsatisfactory performance,
this factor is not relevant to the present circumstances.
To what degree would the size of Life Streaming’ enterprise be likely to impact on the
procedures followed in effecting the dismissal?
[2024] FWC 780
16
[67] Life Streaming is a very small business and I accept this had an impact on the procedures
followed in effecting the dismissal. However, the primary concern I have with the procedures
is that they were conducted by Mr MacDonald and not an external party. Had the same
procedures been followed by an external party, I consider it is likely they would have been
adequate.
To what degree would the absence of dedicated human resource management specialists
or expertise in Life Streaming’ enterprise be likely to impact on the procedures followed
in effecting the dismissal?
[68] I find that a lack of dedicated human resource management specialists contributed to a
significant degree to the defects in the procedures followed by Life Streaming in effecting the
dismissal. If Life Streaming had a HR Manager, it is extremely likely they would have
conducted the investigation instead of Mr MacDonald and that would have cured my concerns
about Mr MacDonald’s involvement.
What other matters are relevant?
[69] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
[70] Although it has been addressed in terms of the other factors to a considerable degree, I
consider the breakdown of the close personal relationship between Ms Mamo and Mr
MacDonald to be a relevant factor to the assessment of whether Ms Mamo was unfairly
dismissed. That is particularly the case given Mr MacDonald and Ms Mamo were the only
employees of Life Streaming.
Is the Commission satisfied that the dismissal of Ms Mamo was harsh, unjust or
unreasonable?
[71] I have made findings in relation to each matter specified in s.387. I must consider and
give due weight to each as a fundamental element in determining whether the termination was
harsh, unjust or unreasonable.25
[72] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied
that the dismissal of Ms Mamo was unjust and unreasonable because there was no valid reason
for her dismissal.
[73] If I had found that there was a valid reason for dismissal, I would have found the
dismissal was harsh given the close association between the events leading to dismissal and the
breakdown in Mr MacDonald and Ms Mamo’s personal relationship. It is virtually impossible
to separate the personal and professional actions of both parties in this case.
[74] If I had found there was a valid reason for dismissal, I would have found the dismissal
to be unjust and unreasonable because Ms Mamo was not provided with an opportunity to
respond prior to the final decision being made, in circumstances whereby any responses were
to be assessed by her former partner, Mr MacDonald.
[2024] FWC 780
17
Conclusion
[75] I am therefore satisfied that Ms Mamo was unfairly dismissed within the meaning of
s.385 of the FW Act.
Remedy
[76] Being satisfied that Ms Mamo:
• made an application for an order granting a remedy under s.394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of s.385 of the FW Act,
I may, subject to the FW Act, order Ms Mamo’s reinstatement, or the payment of
compensation to Ms Mamo.
[77] Under s.390(3) of the FW Act, I must not order the payment of compensation to Ms
Mamo unless:
(a) I am satisfied that reinstatement of Ms Mamo is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the
circumstances of the case.
Is reinstatement of Ms Mamo inappropriate?
[78] Ms Mamo does not seek reinstatement on the basis that the employment relationship
has been irreparably damaged. I agree with this position.
Is an order for payment of compensation appropriate in all the circumstances of the
case?
[79] Having found that reinstatement is inappropriate, it does not automatically follow that a
payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether
to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary
one…”26
[80] Where an applicant has suffered financial loss as a result of the dismissal, this may be a
relevant consideration in the exercise of this discretion.27
[81] Ms Mamo has suffered financial loss in circumstances where I have found there was not
a valid reason for dismissal. In all the circumstances, I consider that an order for payment of
compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
[2024] FWC 780
18
[82] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken
into account when determining an amount to be paid as compensation to Ms Mamo in lieu of
reinstatement including:
(a) the effect of the order on the viability of Life Streaming’s enterprise;
(b) the length of Ms Mamo’s service;
(c) the remuneration that Ms Mamo would have received, or would have been likely
to receive, if Ms Mamo had not been dismissed;
(d) the efforts of Ms Mamo (if any) to mitigate the loss suffered by Ms Mamo
because of the dismissal;
(e) the amount of any remuneration earned by Ms Mamo from employment or other
work during the period between the dismissal and the making of the order for
compensation;
(f) the amount of any income reasonably likely to be so earned by Ms Mamo during
the period between the making of the order for compensation and the actual
compensation; and
(g) any other matter that the Commission considers relevant.
[83] I consider all the circumstances of the case below.
Effect of the order on the viability of Life Streaming’s enterprise
[84] As of 31 December 2023, there was $8,882.43 in Life Streaming’s business account and
no money in its GST account.28 Life Streaming owes Mr MacDonald a director loan amount of
$27,500.39 as of 1 March 2024.
[85] I accept Mr MacDonald is in the process of returning to his previous role as a pilot and
he does not intend to continue operating Life Streaming.
[86] I accept a compensation order of any amount is likely to impact the viability of Life
Streaming’s enterprise and this weighs in favour of a lower compensation order.
Length of Ms Mamo’s service
[87] If I include Ms Mamo’s previous work for Mr MacDonald when he was operating as a
sole trader, the length of her service was around four years. I consider this to be a neutral factor.
Remuneration that Ms Mamo would have received, or would have been likely to receive,
if Ms Mamo had not been dismissed
[2024] FWC 780
19
[88] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the
remuneration that the employee would have received, or would have been likely to receive…
[the Commission must] address itself to the question whether, if the actual termination had not
occurred, the employment would have been likely to continue, or would have been terminated
at some time by another means. It is necessary for the Commission to make a finding of fact as
to the likelihood of a further termination, in order to be able to assess the amount of
remuneration the employee would have received, or would have been likely to receive, if there
had not been the actual termination.”29
[89] The assessment of how long Ms Mamo’s employment would have continued if she was
not dismissed is complicated by the overlapping personal and professional relationships
between Mr MacDonald and Ms Mamo. Mr MacDonald clearly had the view that the
employment had to end one way or another and had initially explored redundancy. Ms Mamo
gave evidence that she thought the business could have continued operating despite the personal
separation if both parties acted professionally.
[90] Having observed the parties during the determinative conference, I do not consider there
is any likelihood that Mr MacDonald and Ms Mamo could have continued operating the Life
Streaming business after the breakdown of their relationship. I consider it is likely that Mr
MacDonald would have made Ms Mamo’s position redundant and ceased operating the
business.
[91] Taking all the evidence into account, I find Ms Mamo would likely have remained
employed with Life Streaming for a further month while other alternatives to end the
employment relationship were explored by Mr MacDonald.
[92] The parties agreed Ms Mamo earned $1,100 gross per week from her employment with
Life Streaming.
[93] I calculate the remuneration Ms Mamo would have been likely to receive working for
Life Streaming from 2 September 2023 to 2 October 2023 to be $4,400 gross plus
superannuation.
Efforts of Ms Mamo to mitigate the loss suffered by Ms Mamo because of the dismissal
[94] Ms Mamo must provide evidence that she has taken reasonable steps to minimise the
impact of the dismissal.30 What is reasonable depends on the circumstances of the case.31
[95] Ms Mamo gave credible evidence that it has been difficult for her to find other work
since being dismissed because she has been driving her children to school from her current
residence in Campbelltown to their existing school at Concord.
[96] Ms Mamo has continued conducting a side business associated with the Body Shop
since she was dismissed.
[97] Ms Mamo commenced performing casual work for Sydney Funerals in December 2023.
[2024] FWC 780
20
[98] I find Ms Mamo’s family commitments have made it difficult for her to find other
employment and she has continued conducting a pre-existing side business. Ms Mamo has also
found casual work with Sydney Funerals.
[99] I do not consider any deduction should be made for failure to mitigate loss.
Amount of remuneration earned by Ms Mamo from employment or other work during
the period between the dismissal and the making of the order for compensation
[100] Ms Mamo provided bank statements which show she has earned the following
remuneration between her dismissal and 25 February 2024:
From Body Shop
- $240.00
- $477.00
- $1,885.36
- $147.60
- $118.00
- $82.61
- $2,683.72
- $34.38
- $8.60
- $115.95
- $133.00
From Sydney Funerals
- $750.00
- $180.00
- $300.00
- $540.00
- $360.00
- $930.00
[101] Ms Mamo has earned $5,926.22 from the Body Shop and $3,060.00 from Sydney
Funerals from her dismissal on 2 September 2023 to 25 February 2024. That is total
remuneration of $8,986.22. Given the order will be made on 27 March 2024, I will estimate
that Ms Mamo has earned a further $1,200 from 25 February 2024 to 27 March 2024. That
increases the total remuneration to $10,186.22.
Amount of income reasonably likely to be so earned by Ms Mamo during the period
between the making of the order for compensation and the actual compensation
[102] I intend to order that the compensation payable to Ms Mamo is to be paid within 14
days. I estimate that Ms Mamo will earn around $600 during this period.
Other relevant matters
[2024] FWC 780
21
[103] Neither party submitted that there were any other relevant matters.
Compensation – how is the amount to be calculated?
[104] As noted by the Full Bench, “[t]he well-established approach to the assessment of
compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the
Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed
Festival Supermarket (Sprigg).32 This approach was articulated in the context of the FW Act in
Bowden v Ottrey Homes Cobram and District Retirement Villages33.”34
[105] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are
deducted but not social security payments. The failure to mitigate loss may lead to a
reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 1
[106] I have estimated that Ms Mamo would have remained employed by Life Streaming until
2 October 2023. This is the “anticipated period of employment”.35
[107] The remuneration Ms Mamo would have received, or would have been likely to have
received, from her dismissal on 2 September 2023 until 2 October 2023 is $4,400 plus
superannuation.
Step 2
[108] Only monies earned since termination for the anticipated period of employment are to
be deducted.36
[109] Ms Mamo earned $240 between 2 September 2023 to 2 October 2023.
[110] For the reasons outlined above, I have not applied a deduction for failure to mitigate
loss because Ms Mamo has taken steps to mitigate her loss.
[111] A figure of $4,160 plus superannuation is left after the deduction for remuneration
earned.
[2024] FWC 780
22
Step 3
[112] I now need to consider the impact of contingencies on the amounts likely to be earned
by Ms Mamo for the remainder of the anticipated period of employment.37
[113] I know Ms Mamo’s earnings during the anticipated period of employment. I therefore
do not need to make a deduction for contingencies.
Step 4
[114] I have considered the impact of taxation but have elected to settle a gross amount of
$4,160 plus superannuation and leave taxation for determination.
Compensation – is the amount to be reduced on account of misconduct?
[115] If I am satisfied that misconduct of Ms Mamo contributed to the employer’s decision to
dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order
by an appropriate amount on account of the misconduct.
[116] It is arguable a deduction should be made in relation to Ms Mamo’s conduct in changing
the password for Life Streaming’s email account on 17 August 2023. However, I decline to do
so in all the circumstances, particularly having regard to the link between the conduct and the
breakdown of the personal relationship.
Compensation – how does the compensation cap apply?
[117] Section 392(5) of the FW Act provides that the amount of compensation ordered by the
Commission must not exceed the lesser of:
(a) the amount worked out under s.392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
[118] Section 392(6) of the FW Act provides:
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal…
[119] Given Ms Mamo’s gross weekly wage rate of $1,100, a compensation cap of $28,600
plus superannuation applies in accordance with s.392(6) of the FW Act.
[2024] FWC 780
23
Is the level of compensation appropriate?
[120] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the
level of compensation is an amount that is considered appropriate having regard to all the
circumstances of the case.”38
[121] The application of the Sprigg formula has resulted in an outcome where Ms Mamo
would be awarded compensation of $4,160 plus superannuation.
[122] I am satisfied that the amount of compensation that I have determined above takes into
account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation order
[123] Given my findings above, I will make an order that Life Streaming must pay Ms Mamo
$4,160 less taxation as required by law, plus superannuation of $457.60 to be paid into Ms
Mamo’s nominated fund, with both payments to be made within 14 days of the date of this
decision.
COMMISSIONER
Appearances:
Ms Mamo representing herself.
Mr Niven from Taylor Rose Lawyers on behalf of Life Streaming.
Determinative conference details:
2024.
Via video.
28 February.
14 March.
Printed by authority of the Commonwealth Government Printer
PR772765
MISSION COM THE SEAL WORK
[2024] FWC 780
24
1 There is no dispute Life Streaming is a small business and that Ms Mamo and Mr MacDonald were the only employees at
the time of dismissal.
2 Attachment AM5 to Exhibit R1.
3 Exhibit A4.
4 Attachment AM 2 to Exhibit R1.
5 Exhibit A11.
6 Pinawin v Domingo (2012) 219 IR 128, [30].
7 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].
8 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
9 Ibid.
10 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
11 Edwards v Justice Giudice [1999] FCA 1836, [7].
12 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
13 Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, [75].
14 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
15 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
16 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
17 Ibid.
18 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000),
[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
19 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].
20 RMIT v Asher (2010) 194 IR 1, 14-15.
21 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
22 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000),
[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
23 Federation Training v Sheehan [2018] FWCFB 1679, [53].
24 Wadey v YMCA Canberra [1996] IRCA 568.
25 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
26 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014]
FWCFB 7198, [9].
27 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
28 Exhibit R3.
29 He v Lewin [2004] FCAFC 161, [58].
30 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing
Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August
2001), [45].
31 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing
Payzu Ltd v Saunders [1919] 2 KB 581.
32 (1998) 88 IR 21.
33 [2013] FWCFB 431.
34 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3457.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1679.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4171.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr908053.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
[2024] FWC 780
25
35 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
36 Ibid.
37 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
38 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
https://www.fwc.gov.au/documents/decisionssigned/html/pr910779.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
