Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 2607 of Deputy President Slevin at Sydney on 4 September 2025 in matter number U2025/5069 - Employee refused drug and alcohol test - Commission found that there was no valid reason for dismissal - Summary dismissal was not warranted and dismissal was unfair - Compensation ordered - Whether the Deputy President erred in failing to afford procedural fairness to self-represented employer - Whether the Deputy President erred in assessing compensation to be awarded to employee - Permission to appeal refused.

[1] MQT Pty Ltd (MQT or the appellant) seeks permission to appeal, and to appeal, a decision of Deputy President Slevin of the Fair Work Commission (the Commission).[1] The decision, to order MQT to pay compensation to Ms Tamati, arose from an application for an unfair dismissal remedy made by Ms Tamati under s 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Ms Tamati was summarily dismissed by MQT for refusing to undergo a drug and alcohol test on 10 April 2025. The Deputy President found that there was no valid reason for Ms Tamati's dismissal. In reaching this conclusion, the Deputy President reasoned that MQT's direction for Ms Tamati to take the drug and alcohol test was not a reasonable direction because:

(a) The grounds for requesting the test, whether "random", "post-incident, or for cause", or "on suspicion", were not made clear to Ms Tamati;[2]

(b) MQT did not have a reasonable suspicion that Ms Tamati had been drinking such that MQT's drug and alcohol policy would apply;[3]

(c) MQT did not provide Ms Tamati with a copy of its drug and alcohol policy at the time the test was requested;[4]

(d) MQT's drug and alcohol policy does not specify a sanction for refusing a test;[5] and

(e) No investigation was undertaken before the decision to dismiss was made, it was not put to Ms Tamati that her refusal to undergo the test constituted serious misconduct and warranted her summary dismissal and nor did MQT put to Ms Tamati the specifics of the policy said to have been breached by her or consider other options before deciding to dismiss Ms Tamati.[6]

[3] After considering the balance of matters specified in s 387 of the Act, the Deputy President reached a state of satisfaction that the dismissal of Ms Tamati was harsh, unjust and unreasonable.[7] The Deputy President then found that reinstatement was inappropriate and ordered MQT to pay Ms Tamati $63,500.00 as compensation in lieu of reinstatement.[8]

[4] MQT relies on two grounds of appeal:

1. At the hearing before the Fair Work Commission (Commission), both the Applicant and the Respondent were self-represented.
2. During the course of the hearing, the Commission indicated that the submissions of Mr Timothy Golinski of the Appellant, would not be considered as evidence unless he was sworn in and provided those statements as evidence.
3. Mr Golinski expressed willingness to the Commission to comply with this requirement and to swear an oath and provide his evidence to the Commission orally.
4. Despite that indication, the Commission did not afford Mr Golinski the opportunity to swear an oath and provide his evidence.
5. The Commission made an error of law due to the failure to allow Mr Golinski the opportunity to provide his evidence orally under oath.
6. In its Decision dated 4 September 2025, the Commission held that the evidence of the Respondent was preferred as it was given under oath, compared to Mr Golinski's submissions.
7. This procedural oversight effectively denied the Appellant the chance to present crucial evidence in support of their case under oath, thereby impacting the fairness of the proceedings.

1. The Commission made a significant error of fact in terms of the calculation that the

1. The Commission in determining the compensation noted that the Respondent had mitigated her loss by obtaining new employment, but that she earned $27,000 less per annum in her new employment.
2. The Commission determined that it would take the Respondent 2 years in her new role to regain the salary she was earning at the Appellant.
3. The Respondent submits that the Commission erred in fact in the above finding as such a finding was not supported by any evidence.

[5] Section 604(1) of the Act makes clear that there is no right to appeal from a decision of the Commission, and an appeal may only be made with permission. Generally, a Full Bench must grant permission to appeal if satisfied that it is in the public interest to do so.[9] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[10] The discretion of the Commission to grant permission is more confined in the case of an application for permission to appeal from a decision made in unfair dismissal proceedings under Part 3-2 of the Act. To that end, s 400 of the Act provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[6] Both subsections (1) and (2) of s 400 of the Act demonstrate an intention that the avenue to appeal a decision in unfair dismissal proceedings is to be limited.[11] Section 400(1) imposes a higher threshold for permission to appeal in respect of unfair dismissal appeals.[12] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no residual discretion exists if that threshold is not met. Section 400(2) provides that, with respect to factual findings made in unfair dismissal proceedings, review on appeal is only available if there has been a "significant" error of fact. A person may not appeal on grounds of an alleged error of fact that does not reach the significance threshold.[13]

[7] MQT contends in its notice of appeal that it is in the public interest to grant permission to appeal for the following reasons:

1. It is in the interest of justice that procedural unfairness afforded to a party or parties is an error that warrants correction on appeal.

2. The integrity of the legal system relies on ensuring that all parties are presented the fair opportunity to present their case, and any deviation from this principle warrants scrutiny.

3. The prejudice to the Appellant in not allowing the appeal is significant given the orders made by the Commission.

[8] The Commission is required to observe procedural fairness in carrying out its functions.[14] The Commission's obligation to provide a fair hearing to all parties includes the provision of appropriate assistance to parties in the presentation of their case, particularly self-represented parties.[15] However, the Commission is not obliged to ensure that parties take the best advantage of the reasonable opportunity they must be given to present their case.[16] Furthermore, while a decision-maker may be bound to provide some advice and assistance to an unrepresented litigant in order to ensure a fair hearing, the decision-maker should not intervene to such an extent that they cannot maintain a position of neutrality in the litigation.[17] There is no debate between the parties that the Commission has these obligations. The contest in this case concerns the application of the principles to the facts of the case.

[9] In the present case, the Deputy President made directions of the usual kind requiring each party to file and serve, before the hearing, all the witness statements, documents and submissions on which they intended to rely. Each party filed and served such material. MQT filed and served two witness statements. The first witness statement was made by Joel Robson, Human Resources Manager. The second witness statement was made by David Muir, National Compliance Manager. Those witness statements included evidence in relation to the discussions Mr Robson and Mr Muir had with Ms Tamati on 10 April 2025 when she was asked to take a drug and alcohol test, including that Mr Tim Golinski, Human Resources Manager, came into the meeting room part way through the discussion with Ms Tamati and contributed to the discussion as follows:[18]

9. At that point Tim (HR) arrived and sat down in the chair next to mine, he had not seen what had happened with Chris or been a part of the conversation with Chantelle.

10. Chantelle asked Tim why we were asking her to undertake a test when it was all to do with Chris, Tim pointed out that we could undertake testing at any time on our sites as an allocator she would be aware that company policies on Drug and Alcohol cover these areas, Joel again stated there has been an incident in the office and we have reasonable suspicion, and Tim said that is why we are doing this. Chantelle said she disagreed with our interpretation of the policy and that she should not be grouped in with Chris. We explained that given the circumstances of her being with Chris and Rob for lunch at the pub for several hours and her admitting to having consumed alcohol we had a duty of care to ensure she was not impaired we had to ensure she would not drive whilst effected by alcohol. I also mentioned that she was acting out of character, being argumentative, repeating herself, slurring some words and mixing up words and repeating already asked questions ...

[10] Mr Golinksi appeared for MQT at the hearing before the Deputy President. Mr Golinski did not make a witness statement. He appeared at the hearing in his capacity as the advocate for MQT. Ms Tamati represented herself at the hearing before the Deputy President.

[11] Mr Golinski asked Ms Tamati questions at the hearing. Partway through Mr Golinski's cross examination of Ms Tamati, the following exchange occurred between Mr Golinski and the Deputy President:

MR GOLINSKI: When I entered the meeting room the meeting was already

underway. Very very quickly (indistinct) what was happening but they've given

you - they wanted the drug and alcohol test to be done, post-incident. I said to

you, 'The company can, in fact, do random tests. This is not a random test; this is

a post-incident test.' In Mr Robson's own statement he confirms that as well when

he had his discussions with you, but you'll be able to cross-examine him on that

anyway. But there was - from our point of view, there was no ambiguity about

the reasons, which you actually agreed to initially, didn't you?

THE DEPUTY PRESIDENT: Mr Golinski, what meeting are you talking about

MR GOLINSKI: This is the meeting on 10 April, the Thursday, where she was

asked to undertake the drug test. It wasn't really a meeting; it was a discussion

about the drug test. She was called in to do the actual drug and alcohol test.

THE DEPUTY PRESIDENT: My concern is that you're giving evidence, and I

don't see a statement here from you that the company is going to be relying on.

THE DEPUTY PRESIDENT: My concern is that you giving evidence in that

fashion doesn't assist me because I can't give any weight - unless, of course, you

want to jump in the witness box and be cross-examined as well.

MR GOLINSKI: I can be, if that suits the Deputy President. I'm happy to do that.

[12] Mr Golinksi then continued with his cross examination of Ms Tamati. MQT's witnesses, Mr Robson and Mr Muir, were then called to give evidence. At no time did Mr Golinski ask to give evidence or seek an adjournment so that he could prepare a witness statement.

[13] MQT submits that Mr Golinksi had a legitimate expectation, based on the comments made by the Deputy President at PN124 to PN128, that he would give evidence later in the proceedings, but he was not given an opportunity to do so. It is submitted that the Deputy President failed to comply with his obligation to assist an unrepresented party to present its case by not inviting Mr Golinski to give evidence as part of MQT's evidentiary case before the Commission.

[14] We do not agree that the Deputy President failed to give MQT appropriate assistance in the presentation of its case to the Commission. First, the Deputy President gave each party the opportunity to file and serve any witness statements they intended to rely on before the hearing. MQT exercised that opportunity by filing and serving statements from Mr Robson and Mr Muir. MQT evidently understood that the mechanism through which it could put evidence before the Commission from a witness was to file a witness statement and decided that Mr Golinski would not give evidence but would instead attend the hearing as MQT's advocate. That decision had a rational basis: MQT already had two witnesses - Mr Robson and Mr Muir - who could give evidence about the relevant conversations with Ms Tamati on 10 April 2025. Mr Golinski's contribution to that discussion was addressed in Mr Muir's statement, as set out in paragraph [13] above.

[15] Secondly, at PN119 Mr Golinski put a question to Ms Tamati: "I said to you, 'The company can, in fact, do random tests. This is not a random test; this is a post-incident test.'" In Mr Muir's witness statement he effectively said that Mr Golinksi explained to Ms Tamati that she was being asked to take a drug and alcohol test because there had been an incident in the office and MQT had reasonable suspicion.[19] It follows that the question put by Mr Golinski to Ms Tamati at PN119 had a proper foundation in the evidentiary material filed and served by MQT prior to the hearing. By putting that question to Ms Tamati, Mr Golinski was not attempting to give evidence from the bar table.

[16] Thirdly, the Deputy President did not say to Mr Golinski that he would be given an opportunity to give evidence as part of MQT's evidentiary case. In substance, the Deputy President intervened to alert Mr Golinski that there were potential difficulties with him attempting to give evidence through the questions being put in cross-examination. That course was consistent with the Deputy President providing appropriate assistance to an unrepresented litigant.

[17] Fourthly, Mr Golinski did not at any point ask to give evidence or seek an adjournment so that he could prepare a witness statement. If Mr Golinski had understood he would have the opportunity to give evidence, we would have expected Mr Golinski would speak up when that did not occur. Absent such a request, we do not consider that the Deputy President 'shut the door' on Mr Golinksi giving evidence as submitted by MQT.

[18] Fifthly, it is relevant that although MQT was self-represented at the hearing, it is not a small business. It had about 1,300 employees at the time of Ms Tamati's dismissal and its advocate at the hearing, Mr Golinski, made relatively sophisticated submissions about relevant matters, including the reasonableness and lawfulness of the direction given to Mr Tamati to undertake a drug and alcohol test. The fact that MQT arguably did not take the best advantage of the reasonable opportunity given to it to file and serve witness statements and present its case does not establish a failure to afford procedural fairness to a party.

[19] For those reasons, we do not accept that ground 1 gives rise to a sufficiently arguable ground of appeal to justify granting permission to appeal.

[20] The Deputy President applied the well-known 'Sprigg formula' to assess the compensation to be awarded to Ms Tamati under s 392 of the Act. As the Deputy President explained, the "first step is to consider s 392(2)(c) and determine what Ms Tamati would have received, or would have been likely to receive, if she had not been dismissed. This requires an assessment of how long she would have remained at MQT and the remuneration she would have earned".[20]

[21] The Deputy President correctly observed that "some speculation is required in determining what Ms Tamati would have earned had she not been dismissed".[21] The Deputy President gave reasons for his conclusion that Ms Tamati "would have continued to work for the company for some years" had she not been dismissed.[22] The Deputy President then noted that Ms Tamati did not receive any notice of termination, or payment in lieu of notice, from MQT and was out of work for four weeks before finding another job.[23] This loss equated to $9,768. Ms Tamati also had an ongoing loss of $27,000 per year because she was earning $27,000 less in her new job than in her job with MQT. The Deputy President gave reasons for his assessment that it would take Ms Tamati two years to regain the salary she was earning at MQT.[24] Putting this together, the Deputy President found that Ms Tamati's total loss was $63,768 ($27,000 x 2 + $9,768 = $63,768). After considering the balance of the matters in s 392 and applying the compensation cap in s 392(5), the Deputy President ordered that compensation in the sum of $63,500 be paid to Ms Tamati.[25]

[22] MQT submits that the Deputy President made a significant error of fact in finding that it would take Ms Tamati two years to regain the salary that she was earning at MQT. We reject this contention. The Deputy President's assessment that it would take Ms Tamati two years to regain the same level of salary she was earning at MQT necessarily involves speculation. For example, a Full Bench of the Commission explained the nature of the task under s 392(2)(c) of the Act in Harvey v Valentine Hydrotherapy Pools Inc [2021] FWCFB 4990:[26]

[11] The question of remuneration that Mr Harvey would have received, or would have been likely to receive, is not a question of fact. It is a question directed to the hypothetical scenario of a likely period of employment that would have ensued had the dismissal not occurred. When making this assessment, the Commission is required to turn its mind to the whole of the evidence and make an evaluative judgment about relevant matters, including the state of the relationship between the parties and other surrounding circumstances.

[23] The statement that the assessment of the remuneration a dismissed employee would have received, or would have been likely to receive, if the person had not been dismissed is not a question of fact should not be misunderstood. The assessment is hypothetical but is nonetheless to be made by reference to, or inference from, established facts. However, to the extent such an assessment involves a factual analysis, the task is of a different character to the determination of the existence, or otherwise, of a past historical event. In relation to the assessment of damage resulting from a loss of earning capacity by reason of personal injury, for example Brennan and Dawson JJ said in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638:[27]

The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.

[24] The hypothetical assessment of the remuneration that would have been received, or would likely have been received, is not commonly going to be susceptible of demonstration or proof. The value of a lost opportunity, in this case to earn remuneration in the employment from which the employee has been dismissed, is to be ascertained "by reference to hypotheses and possibilities which, though they may not be capable of proof on the balance of probabilities, are to be evaluated as a matter of informed estimation".[28] As the Deputy President observed, it necessarily involves a degree of speculation.

[25] We consider that the Deputy President approached his assessment of the remuneration Ms Tamati would have received if she had not been dismissed in this manner, that is, by drawing inferences from established facts. No error has been established in the decision of the Deputy President in that respect. We do not accept MQT's contention that the Deputy President's assessment that it would take Ms Tamati two years to regain the salary that she was earning at MQT was not supported by any evidence. In her written submissions before the Deputy President, Ms Tamati contended:[29]

• (a) But for her dismissal, she would have continued working in her position with MQT for a period of at least six months due to the absences of any other significant tensions affecting the employment relationship. In that event, Ms Tamati would have continued to earn her standard full-time remuneration of $2,442 per week.

• (b) Ms Tamati applied for about 65 jobs following her dismissal on 14 April 2025.

• (c) Ms Tamati commenced new employment on 15 July 2025.

• (d) In her new job, Ms Tamati's remuneration was approximately $1,923.08 per week.

• (e) Ms Tamati would continue to suffer a weekly loss at the rate of $518.92 in her new job compared to her previous job with MQT.

[26] These written submissions contain a mixture of statements of fact and submissions, which is not unusual for self-represented parties. At the hearing, the Deputy President asked Ms Tamati whether she relied on her written submissions. She indicated that she did.[30] MQT did not ask Ms Tamati any questions about her submissions concerning compensation, or the facts underpinning those submissions. In those circumstances, the Deputy President was entitled to have regard to the information contained in Ms Tamati's written submissions in making an evaluative judgment about the financial loss Ms Tamati suffered by reason of her dismissal. We consider that there was a proper evidentiary foundation for the Deputy President's assessment of the compensation to be awarded to Ms Tamati in accordance with s 392 of the Act.

[27] We also do not accept MQT's contention that, if the Deputy President were to consider an amount higher than that proposed by Ms Tamati, he was required to put that proposition to MQT.[31] First, Ms Tamati did not contend that she would have been employed for only six months had she not been dismissed; rather, she asserted that she would have been employed for at least six months.[32] Secondly, Ms Tamati's written submissions sought "an order for compensation equivalent to at least 13-14 weeks' pay (or such larger amount as is appropriate at the time of decision should the Applicant continue to suffer loss between the filing of these submissions and the date of decision)".[33] It follows that this is not a case where MQT participated in the hearing on the basis that Ms Tamati's case was confined to a contention that she would have only been employed for a further six months had she not been dismissed, or that she was only claiming compensation equivalent to 13-14 weeks' pay, such that it would be unfair to decide the matter on a different basis without fair notice or a proper opportunity for MQT to respond.[34]

[28] Thirdly, the outline of argument document relied on by MQT before the Deputy President alerted MQT to the criteria applicable to the calculation of compensation under s 392 of the Act and invited MQT to make submissions on the question of compensation.[35] MQT submitted that no compensation should be awarded to Ms Tamati, essentially on the basis that MQT believed that it had not unfairly dismissed Ms Tamati.[36] MQT did not make any submissions, in the alternative, about how compensation should be calculated or what amount of compensation would be appropriate if a finding was made that the dismissal was unfair.[37]

[29] Fourthly, for the reasons we have explained above, the Deputy President's determination that it would take Ms Tamati two years to regain the same level of salary she was earning at MQT was the result of an evaluative assessment of the compensation that should be awarded to Ms Tamati rather than a simple finding of fact. It was not incumbent on the Deputy President to give MQT an opportunity to comment on his proposed assessment of compensation before making a decision in that regard. On this point, we refer to the following general principle of law stated by a Full Court of the Federal Court in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (quoted with approval by five members of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152):[38]

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

[30] For those reasons, ground 2 also does not give rise to a sufficiently arguable ground of appeal to justify granting permission to appeal.

[31] We do not consider that it is in the public interest to grant permission to appeal in this matter. The grounds of appeal relied on by MQT do not disclose a sufficiently arguable case of appealable error. This is not a case where the legal principles applied by the Deputy President appear disharmonious when compared with other decisions dealing with similar matters. There is not a diversity of decisions at first instance so that guidance from an appellate bench is required. The circumstances of this case are fact specific. The appeal does not raise issues of general importance or general application. Nor is the Deputy President's decision at first instance counter intuitive, and it does not manifest an injustice.

[32] The Full Bench orders that permission to appeal is refused.

I Latham, of counsel, instructed by S Black of Barry Nilsson Lawyers for the appellant.

J Pen, of counsel, instructed by S Kumar of Concord Lawyers for the respondent.

[1] Tamati v MQT Pty Ltd [2025] FWC 2607.

[2] Tamati v MQT Pty Ltd [2025] FWC 2607 at [44].

[3] Tamati v MQT Pty Ltd [2025] FWC 2607 at [45].

[4] Tamati v MQT Pty Ltd [2025] FWC 2607 at [46].

[5] Tamati v MQT Pty Ltd [2025] FWC 2607 at [47].

[6] Tamati v MQT Pty Ltd [2025] FWC 2607 at [48].

[7] Tamati v MQT Pty Ltd [2025] FWC 2607 at [61].

[8] Tamati v MQT Pty Ltd [2025] FWC 2607 at [69].

[9] Fair Work Act 2009 (Cth), s 604(2).

[10] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[11] Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [37].

[12] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J); Workpac Pty Ltd v Bambach [2012] FWAFC 3206; [2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health - Geelong Hospital v Colson [2013] FWCFB 4515; (2013) 233 IR 364 at [6].

[13] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).

[14] R v Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552_; Enterprise Flexibility Agreements Test Case_ (1995) 59 IR 430 at 444; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [25]; Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51; (2024) 304 FCR 136 at [71].

[15] Jones (t/as The Pet Cemetery and Crematorium) v Ciuzelis [2015] FWCFB 84 at [44].

[16] Galloway v Molina [2021] FWCFB 5419; (2021) 310 IR 151 at [24] referring, among other authorities, to Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343.

[17] See, for example, Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [28]- [29].

[20] Tamati v MQT Pty Ltd [2025] FWC 2607 at [66].

[21] Tamati v MQT Pty Ltd [2025] FWC 2607 at [67]. See also Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17].

[22] Tamati v MQT Pty Ltd [2025] FWC 2607 at [67].

[23] Tamati v MQT Pty Ltd [2025] FWC 2607 at [67].

[24] Tamati v MQT Pty Ltd [2025] FWC 2607 at [67].

[25] Tamati v MQT Pty Ltd [2025] FWC 2607 at [68]- [69].

[26] [2021] FWCFB 4990.

[27] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639 and see also at 642-643 (Deane, Gaudron and McHugh JJ).

[28] Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151 at [36]; Transport Workers' Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187 at [86].

[34] Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 at [102].

[37] Appeal book at p84-85 PN411-PN420.

[38] Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 applied in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commission [2020] FWCFB 1099; (2020) 293 R 241 at [25].

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