This matter has been referred to the Police Task Force dealing with organized crime and Motorcycle gang associations.

Additionally, we are instructed that you have made numerous and repeated threats to company director, Peter Sean Buckley, having carried through on two of those threats in contacting his partner [redacted] and former partner [redacted], attempting to extort $350,000 from Mr. Buckley.

Further, (in text messages) you have made further threats attempting to extort the funds from Mr. Buckley. These threats have been referred onto the Police as well.

Neither the Company, nor the Group, nor Mr. Buckley, nor anyone associated with them owe you any money whatsoever. And it goes without saying that even if you had any claim, which is specifically denied, it would not warrant the behaviour you have engaged in.

Your employment (at the Toybox) was ultimately terminated due to multiple, repeated and severe breaches of your employment contract.

[10] The jurisdictional matters of this application were heard before me by telephone on 6 May 2020 and 19 May 2020. Mr Dale Curtis, Managing Director of Tresola Legal was granted leave to appear for Mr Seoud. Mr Lachlan Watts of Counsel was granted leave to appear for the Respondent. Mr Watts was instructed by Mr Ian Hone, Solicitor of Hone Legal & Conveyancing and Mr Tony Truong, Corporate Solicitor of Ultra Tune.

[11] Mr Seoud attended the hearing and gave evidence. The following persons were called as witnesses and gave evidence for the Respondent:

• Mr Peter Sean Buckley, Director of the Respondent and Executive Director of Ultra Group;

• Ms Robyn Bull, Accounts Manager for Ultra Tune and its related corporate entities;

• Mr Anthony Swords, Risk Manager of Ultra Group;

• Ms Tarah Bull, Assistant Accounts Manager for Ultra Tune and its related corporate entities;

• Mr Joshua Torrington, Promotions Manager of the Respondent;

• Ms Tarra Mann-McLean, Director of the Respondent; and

• Mr Tony Truong, Corporate Solicitor of Ultra Tune.

[12] The parties filed final written submissions regarding the two jurisdiction issues on 1 June 2020 and 5 June 2020. Whilst not all the submissions and evidence of the parties are referred to in this decision, all of such have been considered.

[13] While I ruled during the hearing that I would not admit some parts of Mr Buckley's second statement into evidence, I consider it necessary, given the extension of time issue to have regard to some of the oral evidence relevant to Mr Seoud's end of employment and allegations of gang bashings. The reasons why will become clear throughout this decision.

[14] Mr Buckley made two witness statements and appeared and gave evidence at the hearing. Mr Buckley stated that he has known Mr Seoud for approximately 12 to 13 years, and Mr Seoud's family has a background in the food and beverage industry, operating one of Melbourne's leading reception centres in Darling Street, South Yarra for a significant period of time.

[15] In oral evidence, Mr Buckley stated that in around 2014 he returned from overseas and his marriage over, he moved into an apartment in Melbourne owned by him or by one of his businesses. His best guess is that he or his businesses own approximately 30 - 40 properties.

[16] He permitted Mr Seoud to move into an apartment across the hall from him at no cost to Mr Seoud. Mr Buckley stated that he was lonely, and he considered it a good idea for Mr Seoud, who was well-connected, to introduce him to his network of friends and associates.

[17] Mr Seoud then began performing duties for Mr Buckley which included driving him to Family Law Court matters on account of his divorce and custody proceedings in the Court which lasted for around 2.5 years. Mr Buckley explained that there wasn't much for Mr Seoud to do, but he was happy to pay for Mr Seoud to do various things he required of him. Mr Buckley considered that Mr Seoud helped him, including throwing parties where Mr Buckley said he met lots of people. Mr Buckley stated, "I wanted him around. He filled a void in my life, and I was willing to pay for it".

[18] During the hearing I inquired how payments were made to Mr Seoud for this particular time span. Mr Buckley said that he asked Ms Robyn Bull to pay Mr Seoud. In oral evidence he first stated that he had personally paid Mr Seoud, later explaining that he considers his various company accounts as "his" accounts. He stated, "Believe it or not, this is going to be weird; I do not have a bank account. I haven't had one for 25 years. I consider the Ultra Tune accounts to be mine. I have no shareholders to answer to. I consider the payment to Mr Seoud to be personal".

[19] Mr Buckley allowed Mr Seoud to live in the Southbank (Melbourne) apartment from 2014, without charge.

"THIS AGREEMENT is made on 5th day of May 2019.

1. NRA is the fully owned shareholder of Clarson Holdings Pty Ltd.
2. Motor Vehicle 2019 Mercedes Benz Cabriolet - AMG C63 205

1. This agreement is an amendment to Seoud's employment contract dated 5th July 2018.

NOW THIS DEED WITNESSETH and the parties here to hereby covenant and agree as follows:

1. In this Agreement unless the context otherwise requires:

(a) "Motor Vehicle" registration no ....................

(b) Ceases to be a Manager of the Business for any reason.

(c) Commits any act of bankruptcy pursuant to the Bankruptcy Act.

(d) Acts dishonestly in the operation of the Business.

(e) Acts fraudulently in the operation of the Business.

(f) Is convicted of any offence that contains an element of fraud, dishonestly or deception.

(g) Is involved in the sale or distribution of illicit drugs.

(a) Seoud will be provided with a fully maintained company vehicle

(b) Seoud will be responsible for the motor vehicle and its use in accordance with the Employer's company policy.

(c) Seoud will be responsible for all fines penalties and traffic infringements whilst the motor vehicle is assigned to him.

(d) At the Employer's request, you may be required to maintain a logbook detailing usage of the motor vehicle.

(e) During any leave you will be responsible and shall pay for the fuel and tolls used by the motor vehicle.

(f) At the end of the contract you will be required to return the motor vehicle in a clean, good and working condition (save for fair wear and tear).

2. Save to give effect to this agreement, the parties hereto agree that this Agreement shall remain confidential between the parties and shall not be disclosed to any person without the prior written consent of the other parties hereto first obtained or order of the Court.

EXECUTED by CLARSON PROPERTIES PTY LTD in accordance with section 127(1) of the Corporations Act by:

JIMMY SEOUD in the presence of: ....................

[37] Mr Buckley stated that the Mercedes-Benz sports car was provided by the Respondent to Mr Seoud for his personal use. Mr Buckley stated that he has been informed by a member of the Respondent's staff and verily believes that Mr Seoud used the Mercedes-Benz sports car on several occasions to purchase small quantities of additional liquor from the local Dan Murphy's or BWS stores for the Club. Mr Buckley does not know why Mr Seoud purportedly used the Mercedes-Benz sports car on these occasions as the Respondent owns a stretch limousine and a Mercedes-Benz Vito van, which in the ordinary course should have been used for that purpose.

[38] Relevant to how Mr Seoud's dismissal came to be, and on which date, Mr Buckley's oral evidence is that Mr Seoud had somehow become caught up in a dispute with 'middle eastern gang members' who were either trying to recover a drug debt owed by Mr Seoud, or threatening the Club, demanding protection money. Mr Buckley ended up meeting with a person on two occasions who demanded money in the vicinity of $85,000. Mr Buckley and Mr Seoud met with members of the Queensland Police, including Taskforce officers. The conduct of the individual with whom Mr Buckley met and the 'gang' was reported.

[39] It was agreed that Mr Seoud should leave Australia for a while and Mr Buckley assisted with payment for Mr Seoud to travel to Bali. He reimbursed Mr Seoud approximately $3,000 for flights to Bali.

[40] Mr Buckley stated that he was scared for his life, and he hired a bodyguard to protect him. He was very concerned that Mr Seoud was going to be hurt by members of the gang.

[41] Mr Buckley spoke with Mr Seoud by telephone on 15 December 2019. Mr Buckley thought that Mr Seoud was in Bali at this time, but he had returned to Brisbane on the same date, unbeknownst to Mr Buckley. Mr Buckley stated that the phone call was 22 minutes long, and a strategy was decided; Mr Seoud would move to Melbourne and be removed as a director of the Respondent. Mr Buckley stated that despite Mr Seoud allegedly owing money to people, he didn't want to see him get hurt. Mr Buckley was on very good terms with Mr Seoud's sister, having known her for 22 years.

[42] Mr Buckley told Mr Seoud to deal with Mr Swords. Mr Buckley wanted Mr Seoud in Melbourne, safe and with an income. Mr Buckley spoke with Mr Seoud's sister twice, and on one occasion Mr Watts of Counsel was on the call, which Mr Buckley states demonstrates the genuine concern Mr Buckley had for Mr Seoud's welfare.

[51] Ms Robyn Bull made a witness statement and appeared and gave evidence at the jurisdiction hearing. Ms Bull is the Accounts Manager for Ultra Tune and its related corporate entities, including Clarson Properties. Her duties include:

• Preparing financial documents such as invoices, bills, and accounts payable and receivable;

• Completing bank reconciliations;

• Preparing financial reports;

• Initiating payments for various expenses of Ultra Tune and its related entities;

• Entering financial information into appropriate software programs;

• Managing day-to-day transactions;

• Managing payroll; and

• Reconciling Intercompany transactions.

[52] On 28 November 2019, Ms Bull received an email from Mr Seoud which stated:

Due to unforeseen circumstances I have no choice but to lodge in this work cover claim. I have been forced to leave the Gold Coast due to my life and well-being is in danger and my anxiety and depression levels have hit the roof. I have been to doctors and I am on heavy medication to try and help me. Please feel free to call myself or Sean to discuss but in the interim I need you to start the process and lodge my claim please."

[53] Attached to Mr Seoud's email of 28 November 2019 was a Queensland workers' compensation medical certificate dated 28 November 2019, which stated in summary that:

• Mr Seoud was suffering from anxiety disorder;

• The Club was being extorted by a local gang/group which had triggered significant anxiety and risks to personal safety for Mr Seoud at his workplace; and

• The medical management plan was for Mr Seoud to stay away from work noting that he was "planning to leave to remove self from risk" and had been prescribed Valium.[9]

[54] On 5 December 2019, Ms Bull was copied into an email sent from Mr Seoud to Mr Chong which stated:

I have spoken to work cover and that have informed me that I am not eligible for work cover as I am a director of nra enterprises and its Queensland legislation that directors are not covered. Dean has asked if you can look into it and see what options we have and maybe call Nicole to discuss."

[55] At the hearing Ms Bull was asked questions relevant to payments made to Mr Seoud since he became an acquaintance of Mr Buckley in 2014. Ms Bull stated that she has no formal accounting qualifications and relies on external accountants to oversee complicated issues and FBT.

[56] She stated that Mr Seoud was not employed as an employee in 2014, and instead was a contractor. She paid to him whatever Mr Buckley instructed her to. Sometimes this amount varied. Mr Seoud did not produce invoices for payment. She made payment into his bank account without any deduction for taxation.

[57] Only when Mr Seoud became an employee of the Respondent did she remit taxation and pay superannuation into Mr Seoud's superannuation account.

[58] She agreed that she knew that he was living rent-free in the accommodation in Melbourne and on the Gold Coast. She did not deal with FBT in respect of this benefit.

[59] Relevant to boxing events sponsored by Ultra Tune and attended by Mr Seoud, Ms Bull produced invoices demonstrating there were boxing events on the following dates:

• 19 March 2019 - Kingscliffe Boxing

• 27 March 2019 - Kingscliffe Boxing

• 6 June 2019 - Kingscliffe Boxing

• 8 June 2019 - Ace Boxing

• 25 September 2019 - Ace Boxing

[60] In cross-examination Ms Bull stated that she had been working for Ultra Tune for 12 years. She has not seen the Accommodation Agreement and has not calculated FBT for accommodation for anybody. She agreed that there are a number of employees who have FBT on their payment summaries.

[61] Ms Bull stated that she did not know what Mr Seoud did in order to be paid as a consultant from 2014. He was paid by Ultra Tune and she simply paid to him whatever Mr Buckley instructed her to.

[62] Ms Bull is working from home and has now been directed to allocate an FBT allowance for accommodation in respect of Mr Seoud's occupation of the apartment. At the time of the hearing she was about to commence a course on superannuation with the Australian Taxation Office.

[63] Mr Swords made a witness statement and appeared and gave evidence at the jurisdiction hearing. Mr Swords is currently a Risk Manager for the Ultra Group companies. Clarson Properties has a substantial portfolio of properties in Queensland, New South Wales and Victoria. These properties include commercial offices, stud farms, residential houses and residential apartments.

[64] Mr Swords was initially employed by Ultra Thoroughbred Racing Pty Ltd as its General Manager overseeing the operations of the stud farms in New South Wales and Victoria. In approximately November 2018, Mr Buckley requested, and Mr Swords agreed that his employment duties would extend to include being the property manager for all the properties owned by Clarson Properties, in addition to the stud farms. In this role he carries out regular inspections of the properties, assessing what repairs/maintenance are required from time-to-time, organising repairs/maintenance when required, ensuring that where the properties are occupied by third parties that proper leases or license agreements are in place and that rent is up to-date. Prior to Mr Swords' appointment these duties had been performed on an ad-hoc basis by various people in the Ultra Group of companies, with no one having specific responsibility for any particular aspect of managing the property portfolio.[10]

[65] At the time Mr Swords commenced his property management role for Clarson Properties, he went around Australia inspecting and familiarising myself with all of the properties. During this time he ascertained that:[11]

• There were a number of properties that were either vacant or where there is no lease in place and rent was being paid sporadically;

• Two of the properties were occupied (on the basis that he had exclusive occupation rights) by Mr Seoud, namely a two-bedroom apartment at Mantra Crown Towers, Surfers Paradise, and an apartment in Southbank, Melbourne; and

• Mr Seoud was living most of the time at the Crown Towers apartment as he was employed by the Respondent on the Gold Coast but used the Southbank Melbourne from time-to-time when he visited Melbourne.

"ACCOMMODATION AGREEMENT is made on 1st day of August 2018.

CLARSON PROPERTIES PTY LTD (ACN 161 591 680) of [address] ("Clarson");

1. Clarson Holdings is the fully owned shareholder of Clarson Properties.
2. Accommodation occupied [apartment] ("Clarson Apartment").

1. NRA the employer is a subsidiary of Clarson Holdings and Independently and separately from the agreements referred to in recitals A and B as a tenant at will.

1. This agreement is an amendment to Mr Seoud's employment contract dated 5th July 2018.

NOW THIS DEED WITNESSETH and the parties here to hereby covenant and agree as follows:

1. In this Agreement unless the context otherwise requires:

(a) "Accommodation" means the sole use of the Clarson Apartment.

1. TERMINATION OF AGREEMENT
   1. In the event that Seoud:

(b) Ceases to be a Manager of the Business for any reason.

(c) Commits any act of bankruptcy pursuant to the Bankruptcy Act.

(d) Acts dishonestly in the operation of the Business.

(e) Acts fraudulently in the operation of the Business.

(f) Is convicted of any offence that contains an element of fraud, dishonestly or deception.

(g) Is involved in the sale or distribution of illicit drugs.

1. Save to give effect to this agreement, the parties hereto agree that this Agreement shall remain confidential between the parties and shall not be disclosed to any person without the prior written consent of the other parties hereto first obtained or order of a Court.

EXECUTED by CLARSON PROPERTIES PTY LTD in accordance with section 127(1) of the Corporations Act by:

JIMMY SEOUD in the presence of: ....................

[69] Mr Swords swore the following:[14]

"I took the Accommodation Agreement with me to Queensland on one of my numerous visits to Queensland at this time. I wanted to witness Mr Seoud signing the Accommodation Agreement as I had known Mr Seoud for approximately 15 years and I did not trust him. I wanted to be in a position to say that I had seen him sign the Accommodation Agreement. I met with Mr Seoud at NRA's premises and requested that he sign it. Mr Seoud signed the Accommodation Agreement in my presence and I witnessed his signature. Mr Seoud said to me because of what I had done to him with the Southbank he wanted to keep the original and to hand back a copy. However, there were problems with the photocopier and, as I needed to leave, I left the original with him on the basis that when he got the Accommodation Agreement photocopied he would send the copy to Melbourne and that I would follow him up if the copy was not sent to Melbourne."

[70] During the hearing Mr Swords was asked in-chief if there had ever been any physical altercations between himself and Mr Seoud. He described the filming of an Ultra Tune television commercial with the actor Charlie Sheen, where Mr Seoud arrived uninvited to the set. Mr Swords stated that Mr Seoud wasn't permitted to go to dinner with the group and Charlie Sheen on account that he hadn't attended for work at the Club. He stated that Mr Seoud became frustrated and aggressive towards security. Mr Swords tried to calm him down and words were exchanged. Mr Seoud shaped up to hit Mr Swords, but Mr Swords struck him first. Mr Swords stated that while he has known Mr Seoud for 15 years, that has been the only physical altercation with him.

[71] In cross-examination Mr Swords stated that he was originally employed to look after Ultra Thoroughbreds involving around 30 staff and around 300 horses. He could see that money was flying out the door. He said that he had to turn it around to first break even and then to make a profit. Following that he has been given other roles within Ultra Hair (another business within the Ultra Tune group) and the Respondent.

[72] As to the physical copy of the Accommodation Agreement, Mr Swords' evidence is that it was left in a physical outbox tray in the office at Ultra Tune in Melbourne. He was told there was a document to take to Queensland to get signed. Mr Buckley asked him to fly to Queensland. He said the document was sitting in the tray for about a week.

[73] During the hearing he nominated his trip as 16 August 2018, Melbourne to Brisbane, returning 22 August 2018. He stated that he "would have" hired a car from Brisbane to the Gold Coast. When I pointed out that there is a difference between what he would have done and what he actually did, he was unable to say how he travelled from Brisbane to the Gold Coast. There was a significant gap of several minutes during the hearing where Mr Swords failed to respond when asked to confirm he was still on the line.

[74] Upon returning to the call he stated that he dropped out of the call, however I have considerable doubt that this occurred by accident. Resuming, Mr Swords could not recall if he hired a car, was picked up by staff or whether Mr Buckley picked him up.

"I took the vehicle agreement with me on one of my trips to Queensland to get signed by Mr Seoud. I took it with me for the same reason that I took the accommodation agreement. Again I met with Mr Seoud at NRA's premises and witnessed Mr Seoud signing the vehicle agreement. As with the accommodation agreement Mr Seoud wanted to keep the original and get a photocopy which he would send to Melbourne. Again I agreed on the basis that if a copy was not sent to Melbourne that I would be following the matter with him."

[82] In oral evidence, Mr Swords stated that he met with Mr Seoud at a restaurant two doors up from the Club to sign the Motor Vehicle Agreement. His oral evidence is inconsistent with his written evidence.

[83] Mr Swords stated that in December 2019 he was informed by Mr Buckley that Mr Seoud would be vacating the Mantra Crown Towers apartment; Mr Buckley asked Mr Swords to supervise this. Mr Swords contacted Mr Seoud and asked him whether he would like any assistance to move out of the Mantra Crown Towers apartment. On 16 December 2019 at 9:24am Mr Seoud sent the following text message to Mr Swords:[18]

"Thankyou for offering your help but I have already started the process in moving my stuff out as I told Sean it will be done. As for the car Sean knowns it been transported to Melbourne and it's in transaction!! So I'm all good mate Thankyou !!!"

[84] Mr Swords stated that on 18 December 2019, he went to the Mantra Crown Towers apartment in the company of a security guard of Taylor M Security (Mr Santino Celona). He attended the front desk concierge with Mr Celona and produced a written authority from Clarson Properties to attend the apartment. Mr Celona asked the concierge whether any fob keys associated with the apartment has been used that morning. The person at the front desk replied that the fob key associated with the apartment had been used 10 minutes before their arrival. Mr Celona instructed the person at the front desk to cancel all the fob keys associated with the apartment.[19]

[85] Mr Swords had arranged a locksmith to change the locks on the apartment, and the three of them waited in the lobby. A short time later a man, who Mr Swords knows to be Mr Andrew Seoud, the Applicant's brother, together with a person known to Mr Swords as 'Radar' attended the front desk concierge. Mr Celona introduced himself to Mr Andrew Seoud and Radar. Mr Swords took an image of the front desk concierge at this time. A copy of the image was annexed to Mr Swords' witness statement.[20]

[86] Mr Andrew Seoud and Radar said that they had been moving Mr Seoud's possessions out of the apartment and wanted to finish doing so. Mr Swords, Mr Celona and the locksmith accompanied Mr Andrew Seoud and Radar to the apartment and watched as they moved the remainder of Mr Seoud's possessions out of the apartment. Mr Swords further stated as follows:[21]

"By about 2 PM, Andrew Seoud and Radar had finished moving Mr Seoud's possessions out of the apartment and had loaded the possessions into a white truck. Andrew Seoud then drove myself and Mr Celona in the truck to NRA's premises, where we entered Mr Seoud's office and were joined by of Tarrah Mann-Mclean of NRA. I cannot remember whether I then telephoned Mr Jimmy Seoud of whether he then telephoned me, but I had my phone on loudspeaker and then I spoke with Mr Jimmy Seoud. Mr Jimmy Seoud said to me that he wanted his brother to take all his private papers but that anything belonging to NRA had to remain. With Mr Jimmy Seoud on loudspeaker, we then proceeded to work from the left side of the room to the right-hand side, and from draw to draw in the desk and file by file to identify which documents belong to Mr Jimmy Seoud. In this course of this process I recollect seeing a loan document in the name of DDU for a Mazda 3. I didn't recognise that name and I asked Andrew Seoud what it stood for to which he said to me that it stood for Daiquiri Down Under. Other documents that I remember sighting included Mr Jimmy Seoud's liquor licensing certificate, various credit card bills, legal documents related to a law case over Mr Seoud's parents' estates, the Accommodation Agreement and the Vehicle Agreement which I recollected from having taken them to Mr Seoud for signing."

[87] Mr Swords stated that Mr Andrew Seoud placed Mr Seoud's papers into boxes whereupon they were loaded into the white truck. Mr Swords and Mr Celona subsequently returned to the apartment where a woman turned up who said she wanted to collect her belongings. A photograph of the second bedroom of the Mantra Crown Towers apartment was annexed to Mr Swords' witness statement.[22] The image shows belongings on a bedroom floor including a hair straightener, hair dryer, female underwear and sunglasses.

[88] Mr Swords stated that the woman who turned up to collect belongings from the apartment said to him that she had been staying at the apartment with Mr Andrew Seoud and Radar while Mr Seoud was in Bali.

[89] When it was put to him that he could not have witnessed Mr Seoud's signature on the Accommodation Agreement and Motor Vehicle Agreement because Mr Seoud did not sign them, he stated that he did witness Mr Seoud's signature and one of Mr Buckley's signatures on the two documents. I questioned Mr Sword as to whether he forged Mr Seoud's signature on the Accommodation Agreement and the Motor Vehicle Agreement. He denied doing so. Mr Curtis submitted that he is not suggesting that Mr Swords is the architect of the false signatures of Mr Seoud on the two documents. I informed Mr Swords that if Mr Seoud did not sign the documents then he could not have witnessed Mr Seoud signing them. I asked him what he thought of that proposition. He replied that Mr Seoud is lying.

[90] Ms Tarah Bull made a witness statement and appeared and gave evidence at the jurisdiction hearing. Ms Tarah Bull is an Assistant Accounts Manager of Ultra Tune and its related corporate entities, including the Respondent company. She is Ms Robyn Bull's daughter. Ms Tarah Bull's duties include:

• Preparing financial documents such as invoices, bills, and accounts payable and receivable;

• Completing bank reconciliations;

• Entering financial information into appropriate software programs;

• Managing day-to-day transaction; and

• Managing payroll.

[91] Ms Tarah Bull stated that during his employment with the Respondent Mr Seoud was paid a gross salary of $2,250 weekly, the net payment amount after tax being $1,612. On 1 April 2019, the Respondent purchased a Mercedes-Benz sports car for $184,000 which was later registered with the registration "MRVEGAS".

[92] Ms Tarah Bull stated that the Respondent paid for all expenses in connection with the Mercedes-Benz sports car, and provided the below table summarising the expenses from the Respondent's accounting records from 1 April 2019 until 31 December 2019:[23]

Car insurance (Attvest Finance - $248.20 per month from 2 June 2019)

Loan repayment to Metro Finance ($2322.39 per month from 1 June 2019)

[93] Ms Tarah Bull's evidence during the hearing included the following:

• Mr Seoud's bar tab was given to her at the end of each week including all of the drinks put on it by Mr Seoud;

• The bar tab was never paid; it was a way of record keeping;

• Mr Seoud's accumulated bar tab is $19,387.80.

[94] I held concerns during the hearing that Ms Tarah Bull may have been given a "heads up" relevant to questions she may be asked about Mr Seoud's bar tab. Her contemporaneous evidence on this issue was surprisingly quick.

[95] Mr Truong gave evidence that during a break he spoke with Ms Tarah Bull and said the following, "The Commissioner is going to contact you. You should have your witness statement with you". In answering questions from me Mr Truong stated that he did not provide any advance knowledge to Ms Tarah Bull that she would be asked questions about Mr Seoud's bar tab.

[96] Mr Torrington made a witness statement and appeared and gave evidence at the jurisdiction hearing. Mr Torrington is the Promotions Manager of the Club. Mr Torrington's duties include undertaking the weekly stock-take of alcohol at the Club and chauffeuring the Club's patrons in the Club's stretch limousine or Mercedes-Benz Vito passenger van.

[97] During Mr Seoud's management of the Club it traded on Thursday, Friday, Saturday and Sunday evenings, opening at 8:00 pm. After Mr Seoud's termination the Club stopped trading on Sunday evenings. Mr Torrington stated that he always did a stock-take of the alcohol prior to the Club opening on Thursday evenings and another stock-take after the Club finished trading on Sunday evenings.

[98] He stated that it was Mr Seoud's practice to take home alcohol from the Club on the nights he turned up. The alcohol taken by Mr Seoud was recorded in the stock sheets as simply being minus entries with no further notation. There were normally six to eight bottles of vodka taken home by Mr Seoud each week together with other alcohol such as Jack Daniel's whiskey. Mr Torrington stated that he was often directed by Mr Seoud to load alcohol from the Club into Mr Seoud's car.[24]

[99] Mr Torrington stated that under Mr Seoud's management the Club's alcohol purchases were averaging out around $4,500-$5,000 per week. After his dismissal the Club's purchases dropped down to around $1,600-$2,000 a week for about the same number of paying patrons.[25]

[100] On numerous occasions Mr Seoud directed Mr Torrington to go to Dan Murphy's or BWS to pick up supplementary alcohol. Mr Torrington stated that he invariably attended to this task using the Club's stretch limousine or the Mercedes-Benz Vito passenger van. However, there were probably about six occasions when Mr Seoud drove his Mercedes-Benz sports car to either the local Dan Murphy's or BWS to purchase and pick up supplementary alcohol supplies. Mr Torrington stated that Mr Seoud's Mercedes-Benz sports car was not used to chauffeur paying patrons of the Club, nor was it used to transport dancers who performed at the Club.[26]

[107] Ms Mann-McLean made two witness statements and appeared and gave evidence at the jurisdiction hearing. Ms Mann-McLean is currently a Director of the Respondent having been appointed on 18 December 2019 to replace Mr Seoud. She has worked at the Club as the Assistant Manager since around 2007 when it was owned by a different entity. She is one of the licenced controllers for the Club.

[108] After Mr Buckley's entity acquired the Club, Ms Mann-McLean reported to Mr Seoud. She stated that throughout Mr Seoud's employment with the Respondent the Club traded on Thursday, Friday, Saturday and Sunday evenings from 8:00 pm, and she was in attendance at the Club on Thursday, Friday and Saturday evenings.

[109] Mr Buckley decided to provide a limousine service to pick patrons up from their homes, or a restaurant, bar or hotel to transport them to the Club. Mr Buckley informed Ms Mann-McLean that the Club would be supplied with a stretch Ford limousine that was owned by one of Mr Buckley's companies.[28] After the limousine arrived, it was badged with signage advertising the Club. A picture of the Club's limousine badged with the words 'Toy Box Gentlemen's Club' across the body of the vehicle was included in Ms Mann-McLean's witness statement.[29] Ms Mann-McLean also stated that several months later the Club acquired a second vehicle for transporting patrons, being the Mercedes-Benz passenger van.

[110] In early to mid-2019, Mr Seoud turned up to the Club for work in a Mercedes-Benz sports car with the number plate "MRVEGAS". She stated that Mr Seoud told her that he had purchased the car himself, however he then said to her that the Mercedes-Benz sports car had been purchased by the Respondent as a gift.[30] Ms Mann-McLean stated that Mr Seoud regularly bragged to people in her presence that he owned the car himself.

[111] Ms Mann-McLean stated that she saw the monthly finance expenses for the Mercedes-Benz sports car coming out of the Respondent's bank account. Due to her long association with the Club and her personal efforts in building up the business, Ms Mann-McLean was furious with Mr Buckley for purchasing the Mercedes-Benz sports car as the Respondent was struggling financially. The monthly finance costs were eating into the cash flow and she was concerned that Mr Seoud was not properly conducting himself as the Club's manager. She addressed these concerns with Mr Buckley who in turn said to her that the Mercedes-Benz sports car would be a tax write-off.

[118] Mr Truong, a Corporate Solicitor of Ultra Tune, appeared and gave evidence at the hearing.

[119] Mr Truong swore an affidavit on 29 April 2020. I had directed the Respondent to provide to the Commission the original documents of the purported Accommodation Agreement dated 1 August 2018 and the Motor Vehicle Agreement dated 5 May 2019. He stated the following:

"....I have conducted multiple searches on the Respondent's records. I could not find the original documents or the above-mentioned Agreements.

I have made inquiries to a director of the Respondent being Mr Peter Sean Buckley of whereabouts the original Agreements are. Mr Buckley informed me that:

(a) He did not have the original Agreements;

(b) He signed the Agreements then provided them to his employee being Mr Anthony Swords to witness the signature of the Applicant;

(c) The Applicant is currently in possession of the original Agreements as the Applicant had all his personal documents returned to him by Mr Swords on the 18 December 2019.

I also made inquiries with Mr Swords who informed me that:

(a) He witnessed the signature of the Applicant on both Agreements;

(b) He returned a file containing the original Agreements to the Applicant's brother on the 18 December 2019; and

(c) The Applicant has the original Agreements with him."

[120] At the hearing on the second day I required Mr Truong to give evidence. In cross-examination he agreed he helped draft the witness statements of other witnesses in the proceedings. He stated that he did not draft the Accommodation Agreement. He said that he has "no clue" who did. He commenced with Ultra Tune in July 2018, and the Accommodation Agreement was "prepared" in August 2018.

[121] It was put to him that Mr Buckley had said that it was his legal team who had prepared the Accommodation Agreement. Mr Truong said the legal team is Mr Albert Chong as senior solicitor and himself. Only he and Mr Chong draft legal agreements.

[122] He was taken through the Accommodation Agreement. He was asked by Mr Curtis where does it say in the Accommodation Agreement that Mr Seoud receives benefit of an apartment from the Respondent entity? Mr Truong said it is an amendment to the employment agreement. He thinks it is an express term and also an implied term. He considers Mr Seoud received the benefit of accommodation.

[123] Mr Truong stated, "He has been living in there since the agreement was signed". It was put to him that Clarson Properties is not the Respondent and was asked what is the relationship between Clarson Properties and the Respondent? He replied that it is in Recital C. It was pointed out that the Accommodation Agreement is with Clarson Properties. How amongst all of that is the apartment part of Mr Seoud's employment benefits? Mr Truong considered it might be pursuant to Recital D.

[124] Mr Truong stated, "Clarson Properties owns various properties in Australia. Clarson Holdings is the shareholder of NRA. There is a relationship between all of the parties. They are inter-related".

[125] I asked Mr Truong if Clarson Holdings owns Clarson Properties? Mr Truong replied that Clarson Holdings is the shareholder of Clarson Properties. Mr Truong could not explain the corporate structure of the various entities including how is Clarson Properties and NRA related? Mr Truong replied they are related parties of Clarson Holdings. He was asked to describe the relationship. He said the director of NRA, Mr Buckley is also the director of Clarson Holdings. He was not able to describe the director(s) of Clarson Properties.

[133] Mr Annable made a witness statement to which the Respondent filed in this matter. At the jurisdiction hearing, it was mutually decided that Mr Annable would not be called to appear and give evidence. Mr Annable is employed by Ray White Surfers Paradise and stated that he has over 24 years of experience in the real estate industry.

[134] Mr Annable was requested by Mr Truong of the Respondent to provide a rental appraisal on the Manta Crown Towers apartment. He inspected the apartment and noted that 'high quality' renovations had been completed in the apartment.[33] Even taking into consideration the current market conditions, he is confident that the apartment certainly achieves a rental of $725 to $755 per week. He stated that this estimate is based on rent achieved for similar large, renovated, high floor apartments in the building and comparable buildings such as, Sun City and Chevron Renaissance.[34]

[135] Following the hearing the Respondent filed an affidavit of Mr Kevin Toghai sworn on 22 May 2020. Mr Toghai has been employed by Ultra Group as the Head of Technology since November 2019. Since he commenced Mr Toghai has raised concerns with Mr Buckley about Ultra Group's current IT structure, including its inability to keep pace with the Ultra Group's needs, lack of centralisation of data and loss of data.

[136] He stated that he has been in the process of capturing all the data to a Cloud server, but this is a time-consuming task. Mr Toghai has directed all employees of the Ultra Group to store all data files on the Cloud without exception.

[137] On 21 May 2020, Mr Truong instructed Mr Toghai to search for all correspondence and documents pertaining to the following agreements:

• Accommodation Agreement dated 1 August 2018;

• Motor Vehicle Agreement dated 5 May 2019;

• Employment Agreement dated 5 July 2018; and

• Incentive Agreement dated 5 September 2018.

[138] On 21 May 2020 and 22 May 2020, he conducted a search in Mr Buckley's email and laptop files, and in data stored in the Cloud. Mr Toghai's affidavit set out details of the search methods and paths used. Mr Toghai stated that the results of his searches were that:

• He could not find in Mr Buckley's emails or his laptop any correspondence or documents pertaining the four Agreements mentioned in the above paragraph; and

• He found copies of the four agreements stored in different locations on the Cloud server, but nothing on the system indicates anything about the origin of such hardcopy documents.

[139] Following the hearing the Respondent filed an affidavit of Mr Alan Brown sworn on 22 May 2020. Mr Brown has been employed as IT Support by Ultra Tune since 18 November 2003 and reports to Mr Toghai.

[140] Mr Brown stated that on 21 May 2020 he was instructed by Mr Truong to conduct searches for correspondences and documents pertaining to the agreements set out in Mr Toghai's evidence above at [137].

[141] Mr Brown's first search was on a backup of emails on Mr Buckley's old laptop he used for three years prior to April 2020, which did not return any results. The second search was on Mr Buckley's old laptop and new laptop, which did not return any results. Mr Brown's third search was using a Microsoft eDiscovery platform which allowed him to search documents in the email addresses of Mr Buckley, Ms Davey, Mr Seoud, Mr Tony Cott and Mr Cedaro using certain keywords. The third search uncovered:

• One email pertaining to a draft employment contract in 2017;

• Eight emails between Mr Seoud and Mr Chong pertaining to a proposed employment contract in December 2019; and

• One email from Mr Cedaro dated 27 December 2019 to Mr Buckley concerning the termination of employment of Mr Seoud.

Whether application lodged more than 21 days after dismissal took effect

[142] The Respondent noted that the Form F2 - Application for unfair dismissal remedy was filed by Mr Seoud on 13 January 2020. The Respondent submitted that although the Form F2 - Application states that Mr Seoud was represented by a lawyer, in cross-examination Mr Seoud admitted that he had prepared the Form F2 - Application, and that he had electronically lodged the application with the Commission.[35]

[143] The Respondent submitted that Mr Seoud's oral evidence establishes the following chronology of events:

In the early hours of the morning, Mr Seoud was assaulted both inside and outside of NRA's premises by members of a gang.

Mr Seoud and Mr Buckley meet with QPS including members of the Maximum Taskforce to discuss the events of 17 November 2019. Mr Seoud was advised by the Taskforce to leave the State because of his life- threatening situation.

Mr Seoud travelled to Brisbane and did not return to the Gold Coast.

Mr Seoud returned from Bali after being "bashed" in Bali.

Mr Seoud was informed by Mr Buckley that he was required to move out of the Crown Towers apartment.

• Mr Seoud discovered that his NRA credit card had been cancelled.
• Mr Seoud was contacted by Mr Swords who offered to assist him to move out of the Crown Towers apartment, to which Mr Seoud declined the offer and said in a text: "I have already started the process in moving my staff out as I told Sean it will be done" and also "2nd week of January as I told Sean". In the first text he also said to Mr Swords: "as for the car Sean knows it has been transported to Melbourne".
• Mr Seoud sent a text to Mr Buckley stating that he felt that he had been pushed out very quickly and requested that he be able to peacefully move his belongings out of the Mantra Crown Towers apartment after Christmas.
• Mr Buckley said to Mr Seoud that he needed to get out of the Gold Coast. A contract of employment with Ultra Tune in Melbourne was being drafted, and that Mr Seoud needed to let him know whether he would be accepting an offer of employment at Ultra Tune in Melbourne. Mr Seoud said that he would not be going to Melbourne at that stage as it was not safe for him, and that he had to get his name out of the Club, and that he and Mr Buckley needed to work things out directly and not via third parties.

• Mr Seoud's brother, who had received a copy of the draft Employment Contract with Ultra Tune, gave the copy to Mr Seoud.
• Mr Seoud received his last pay on 18 December 2019 but was only for half the amount had he been still employed.
• Mr Seoud's access to his NRA email account had been cancelled.

Mr Seoud acknowledged receiving Mr Hone's email with an attached letter from Mr Hone, which states, inter- alia:

• "We are writing to you to clarify some points regarding your lack of understanding as to the reason(s) your role at the Toybox Gentleman's Club was ultimately terminated and you were removed from the board of directors on December 17, 2019 whilst you were holidaying in Bali."
• "We are instructed that you were informed of, and welcomed, the decision of the board, stating you no longer wished to work at the Toybox and wished to relocate back to Melbourne in order to facilitate this relocation to Melbourne, Mr Buckley offered you a role at (Ultra Tune Australia Pty Ltd), on a comparable salary with a motor vehicle, working out of the Melbourne office under the direction of Mr Tony Cott and Mr Rod Cedaro on December 19, 2019 which you subsequently rejected".

[144] The Respondent submitted that in summary:[36]

• Mr Seoud's wages had stopped;
• Mr Seoud's NRA credit card had been cancelled;
• Mr Seoud had been locked out of his NRA email account;

• Mr Seoud was required to move out of his NRA-supplied accommodation and return the company car; and

• As a consequence of Mr Seoud's employment with NRA being terminated, he was being offered alternative employment in Melbourne with another corporate entity controlled by Mr Buckley. A draft contract of employment with Ultra Tune had been given to him.

[145] The Respondent submitted that the events described above at [143] - [144] demonstrate that Mr Seoud knew by 16 December 2019, or at the very latest by 18 December 2019 that he was no longer employed by the Respondent and that his services had been terminated. It was submitted that Mr Hone's letter of 27 December 2019 was not notification of termination of Mr Seoud's employment, but on its face clear clarification of the reasons for the termination of Mr Seoud's termination with the Respondent and removal of directorship.

[146] The Respondent submitted that having regard to the matters set out above Mr Seoud's application was not made within the period required in s.394(2) of the Act.

[147] The Respondent submitted that Mr Seoud is not a person protected from unfair dismissal, as he does not meet the enabling criteria set out in s.382(b) of the Act. In particular, Mr Seoud does not meet the criteria set out in s.382(b)(iii) of the Act as the sum of his annual rate of earnings, inclusive of other amounts of non-monetary benefits worked out in accordance with the regulations, exceeds the high income threshold.

[148] The Respondent noted that Mr Seoud's evidence is that he did not sign the Accommodation Agreement nor the Motor Vehicle Agreement. It is unclear to the Respondent whether in this context Mr Seoud submits that as neither the accommodation nor provision of a vehicle were referred to in his Employment Agreement, that these benefits should be excluded from calculation of his annual earnings. At one point the Respondent understood Mr Seoud to be submitting that the accommodation was a benefit of $50 per week, but it is not clear whether this was put forward as a primary submission or as an alternative submission.

[149] The Respondent submitted that the existence or otherwise of the written Accommodation Agreement and the written Motor Vehicle Agreement in many respects add an unnecessary layer to this case and are otiose to the final outcome. Putting aside both the written Accommodation Agreement and the written Motor Vehicle Agreement, the Respondent submits that for the purposes of assessing whether the high income threshold applies to Mr Seoud at the time of dismissal the Commission should:[37]

• consider the accommodation and motor vehicle benefits provided to Mr Seoud for the purpose of determining whether the high income threshold applied to him at the time of the cessation of his employment; and

• estimate a real or notional money value of these benefits being the amount for ss.382(b)(iii) of the Act.

[150] The Respondent referred to the decision of Deputy President Sams in Paul Dart v Trade Coast Investments Pty Ltd[38]('Dart'), in which the respondent in that case had raised a jurisdictional objection that the the high income threshold had been met by reason of the applicant's private use of a company supplied car, iPad and mobile phone. The Deputy President stated:

"[89] The tenor of the applicant's case was that if he had not expressly agreed to being given a benefit, or it was not part of his initial Letter of Employment or it was provided after he commenced employment, that this somehow negated or reduced the value of the benefit for the purposes of the annual rate of earnings test. In addition, the applicant described the private use of the motor vehicle and mobile phone as 'incidental' to his primary function as being 'on call' 24/7."

[151] The Respondent also referred the Commission to the decision of the Full Bench in Sam Technology Engineers Pty Ltd v Mr Andrew Bernadou[39] ('Sam Technology') at paragraph [67] which says:

".....it has long been held, for the purpose of determining whether an employee is above the high income threshold for protection against unfair dismissal, that the focus is on the private benefit derived by an employee from the provision of a fully maintained motor vehicle. The provision of the vehicle for business purposes is not included in determining whether the employee has exceeded the high income threshold. A Full Bench of the Australian Industrial Relations Commission in Rofin Australia Pty Ltd v Newton endorsed the following approach taken by Senior Deputy President Watson in determining whether any part of the provision of a fully maintained motor vehicle to an employee should be included as part of the employee's remuneration ....."

[152] The Respondent submitted that Mr Seoud's actual earnings in the 2019-2020 financial year are for a period of less than the full financial year. For the purposes of determining whether the high income threshold is met it is appropriate to annualise earnings in the financial year in which the termination has taken place. On this point, the Respondent referred the Commission to the decision of Commission Bissett in Lisa Slavin v Horizon Holdings Pty Ltd[40] ('Slavin') at paragraph [14] which says:

".....it does not make sense to suggest that earnings should be determined with respect to actual earnings in the financial year in which the termination took place. To not annualise the wages or other benefits of the Applicant would provide an unfair advantage to employees dismissed early in the financial year and disadvantage those dismissed in June of any year. Further, it seems to me that it would not be logical to determine an Applicant's annual rate of earnings by reference to any period except that period preceding the termination of her employment. Section 382 of the Act is directed at protection from unfair dismissal if, at that time, (that is the time of the dismissal) the sum of the person's annual rate of earnings and such other amounts as prescribed by the regulations is less than the high income threshold. Consideration of annual rate of earnings in the most recently completed financial year would not allow for the determination of an annual rate of earnings at the time of the dismissal."

[153] With respect to the Mantra Crown Towers apartment, the Respondent submitted that Mr Seoud resided in a two-bedroom apartment for the duration of his employment with the Respondent. The Respondent stated that on this point there are four preliminary matters it wished to note.

[154] The first is with respect to Mr Seoud's submission that the fact that the Accommodation Agreement dated 1 August 2018 is on its face an agreement between Clarson Properties Pty Ltd and Mr Seoud, and is not an agreement between the Respondent and Mr Seoud, with the consequence that the Accommodation Agreement is not effective as a variation of the employment agreement. Whilst it does not resile from the integrity of Accommodation Agreement, the Respondent accepts the force of these arguments and does not therefore rely on the Accommodation Agreement that Mr Seoud's residence at the Apartment constituted a benefit that forms part of his annual earnings.[41] [my emphasis]

[155] The second preliminary matter the Respondent noted was that Mr Seoud did not challenge the evidence of Mr Annable that the Mantra Crown Towers apartment had a rental value of $725-$750 per week, and did not lead any evidence to the contrary. Accordingly, the Commission should find that the Crown Towers apartment has a rental value of $725-$750 per week.[42]

[156] The third preliminary matter the Respondent noted was that it is a fact that the Mantra Crown Towers apartment is owned by Mr Buckley's company Clarson Properties Pty Ltd. The Respondent submitted that the ownership of the apartment is not the point. It is the provision of the accommodation which is relevant, be it at a property owned by one of Mr Buckley or at a property owned by a third party.[43]

[157] The fourth preliminary matter the Respondent noted was that consistent with Dart, the essential point is that there was a benefit provided to Mr Seoud and it is not relevant that it was not referred to in the initial Employment Agreement or otherwise formally documented in a variation.[44]

"As an aside, I find it intriguing, that in many unfair dismissal cases, the dismissed employee will tell me that he/she was an invaluable asset to the employer. The dismissed employee often cites an extensive range of skills and wide experience in order to challenge the basis for their dismissal. Yet, in this case, a senior employee, being paid well above the high income threshold, contends that he was covered by a Modern Award and argued he was really just an unskilled worker with little independent discretion or responsibility in his job. The objective evidence does not bear this out."

[162] The Respondent noted that there is a dispute as to whether or not Mr Seoud had exclusive occupation of the Mantra Crown Towers apartment and therefore could invite guests of his choosing to stay there from time to time, or whether he only had occupation of one of the two bedrooms with the other bedroom being used to provide accommodation to dancers.

[163] The Respondent submitted that that the Commission should prefer the evidence of Mr Buckley, Ms Tarra Mann-Maclean and Mr Torrington to that of Mr Seoud. In particular, the Commission should find Ms Mann-Maclean a witness of truth, and accept her evidence that the Respondent did not offer its performers accommodation at the Mantra Crown Towers apartment, and where dancers did stay at the apartment on some occasions (which is not denied), they stayed there consequent upon personal arrangements between Mr Seoud and the individual in question.

[164] The Respondent submitted that in respect to the Mercedes-Benz sports car, Mr Seoud made submissions based on a concession that even if the Motor Vehicle Agreement did not exist, there was still an element of private usage and hence personal benefit from the provision of the car. In respect to the accommodation Mr Seoud took a different approach and did not advance any submissions on whether there was a non-monetary accommodation benefit even if the Accommodation Agreement did not exist. It was submitted that by limiting his submissions in this way, Mr Seoud has "side skirted" the inconvenient fact that in his Form F2 - Application he identified the provision of accommodation as part of his employment agreement, and the evidence at the hearing that there was an element of personal benefit arising from the provision of the accommodation; the issue then arising for determination being the quantification of that benefit.

[165] Consistent with the reasoning in Dart, the Respondent submitted that Mr Seoud did derive a private benefit from the vehicle which is a high-powered luxury sports car which arose out of the agreement between him and Mr Buckley for the purchase of the vehicle by the Respondent. The Respondent further submitted that it does not have to rely on the Motor Vehicle Agreement to establish this part of its case which again is otiose. It was submitted that it does not resile from the Motor Vehicle Agreement, but in the interests of confining the ambit issues the Respondent is prepared to put its case within the framework of established principle and the facts as outlined below.

[166] The Respondent identified that in Rofin Australia Pty Ltd v Newton[50] ('Rofin') that the applicant in that matter had used the motor vehicle supplied by the employer 95% of the time for personal use. The Respondent further identified that a Full Bench of the Australian Industrial Relations Commission in Rofin at [82] endorsed the following approach taken by Senior Deputy President Watson in Condon v G James Extrusion Company[51] in deciding whether any part of the provision of a fully maintained motor vehicle to an employee should be included as part of the employee's remuneration:

"1. The private benefit derived by an employee through the provision to such an employee of a fully maintained motor vehicle will constitute remuneration for the purpose of s 170 CC(3) and (4), and

2. For the purposes of determining remuneration, the focus should be upon the private benefit derived by the employee and the provision of a motor vehicle for business purposes would not form part of the remuneration.

These principles appear to reflect a distinction that has been made, in our view quite properly, between the provision of a motor vehicle as part of a salary package and the provision of the motor vehicle is a piece of equipment supplied by the employer to enable the employee to perform the job. Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee's remuneration."

[167] The Respondent submitted that a consistent line of subsequent authorities has held that the private benefit of a motor vehicle that is provided as part of a salary package is counted as part of the employee's remuneration. The Respondent further submitted that in the decision of Kunbarllanjnja Community Government Council v Fewings[52] ('Fewings'), the Full Bench set out to develop a reliable method for estimating the value of an employer provided vehicle being one that was more reflective of the actual circumstances the vehicle and the driver in an individual case. In setting out what it considered to be an appropriate formula for calculating the benefit which reflected actual circumstances, the Full Bench said:

"In our view the most appropriate method of calculating the value of the motor vehicle component of an applicant's remuneration is as follows:

1. Determine the annual distance travelled by the vehicle in question.

2. Determine the percentage of the annual distance travelled which was for the applicant's private purposes.

3. Multiply the figures from 1. and 2. This provides the annual distance travelled for private purposes.

4. Estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations.

5. Multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the applicant's remuneration."

[168] The Respondent submitted that the Fewings methodology has affirmed and applied in many other Full Bench decisions of the Commission. For example, in Sam Technology the Full Bench at paragraph [48] said:

"At the outset, we do not take issue with the method of apportionment adopted by the Full Bench in Fewings and consider it entirely appropriate for circumstances in which an employee has a company-supplied vehicle (from which he or she derives a benefit) and a reasonable monetary value has not been agreed for its private use. We consider that the Fewings method of apportionment is appropriate to enable the Commission to estimate the real or notional value of the benefit in the manner contemplated by regulation 3.05(6) of the Regulations, which deals with benefits other than the payment of money. A car allowance, however, is a payment of money. Therefore, regulation 3.05(6) is not relevant to the determination of whether the payment of a car allowance to an employee takes the employee above the high income threshold."

[169] It was submitted that in cross-examination Mr Seoud stated the following:

• In or about November/December 2018, he had discussions with Mr Buckley about Mr Buckley purchasing a new vehicle for his use in his Ultra Tune business, and a new vehicle being purchased by NRA for Mr Seoud to drive;[53]

• In or about February 2019, he had a discussion with Mr Buckley in which Mr Buckley said that he (i.e. Mr Seoud) could choose the car he wished to drive;

• He had chosen the Mercedes-Benz convertible sports car as the car he wanted to drive;

• Mr Seoud was a guarantor and a signatory to the purchase and finance contracts for the purchase of the Mercedes-Benz sports car;

• The Mercedes-Benz sports car had a personalised number plate for Mr Seoud being "MRVEGAS";

• When Mr Seoud was not on the Gold Coast, e.g. on his 50th birthday trip to Las Vegas, the Mercedes sports car was not driven and was locked up;

• NRA had two limousines to chauffeur customers; one being a Mercedes Benz sprinter passenger Van and the other being a stretch Ford limousine, although that vehicle was often subject to breakdowns;

• Except for periods of peak demand, there was only a need for one limousine to meet the customers' needs; and

• During the period in question he was away on holidays in those Vegas for approximately 2 weeks.

[170] The Respondent submitted that based on Mr Seoud's evidence, the Respondent estimates that the "private/work split" of the kilometres on the Mercedes-Benz sports car travelled as set out by the Applicant below at [193], should be as follows:

In cross-examination Mr Seoud disputed Ms Maclean's evidence that this would only have occurred on 5 or 6 occasions and said it happened on many

Many occasions is not every week, and there should be an downward adjustment of at least 50% to the estimated travel for this purpose.

Mr Seoud acknowledged that Ms Maclean attended to this task approximately 15% of the time. Therefore Mr Seoud's estimate should be reduced to

Ms Maclean's evidence should be preferred over that of Mr Seoud on this point. The limited space in a convertible sports car for transporting such

Mr Seoud has sought to downplay the personal benefit by saying that some of these trips also involved picking up or dropping off dancers. However, this then then overlaps with his claim

This is a private benefit. The evidence of Mr Torrington should be preferred on this point to that of Mr Seoud as Mr Torrington's account of what happened at the end of the night is credible.

This is a contested as to whether there were paying customers or simply Mr Seoud's guests. The Respondent submits that the evidence of Ms Maclean and Mr Torrington should be preferred over the evidence of Mr Seoud on this point. Given the availability of the Mercedes sprinter passenger van, it is highly unlikely that there would have been a need for the sports convertible to have been used in the manner alleged. Further, Mr Seoud's estimate is internally contradictory. He says that the pickup service was available within a 20 km radius and then says that there was a minimum of one trip week taking 40 km. If the service was available within a 20 km radius, it is mathematically illogical to calculate this figure based on the maximum radius as opposed to providing a calculation of an average trip. Further, the figure of 40 km implies a round trip of 20 km each way which in turn implies that the Mercedes Benz sprinter

Van was not available for both legs of the journey.

The evidence of Mr Torrington should be preferred on this point to that of Mr Seoud as Mr Torrington's account of what

This should be rejected as the accounting records show that there were no events

Attending 3 boxing shows at Tweed Heads and weigh ins

in cross-examination when questioned about the distance travelled for these events, Mr Seoud said that you have to

There appears to be a doubling up with item 4, being the 700 km picking up dancers for boxing promotions.

Attending boxing shows at Ashmore/Southport and weigh ins

Mr Seoud appears to have overestimated the distance travelled particularly as one of

picking up and taking promotional models to boxing events and weigh ins

This appears to be subject of doubling up with the estimates for travel to the boxing events and weigh ins. Further, there is basis provided for how this figure is derived at, and it is totally out of proportion to the

No proper basis has been provided for calculating this estimate.

This was a personal matter are not part of his employment duties. One could well see given the generosity of his employment conditions why he

Mr Torrington gave evidence that Mr Seoud lent the car to him on 2 occasions where he travelled all up approximately 130 km. Therefore Mr Seoud's estimate should be reduced by

[171] The Respondent submitted that in applying these adjustments the private usage of the Mercedes-Benz sports car amounted to 8868 km of the 11,085 km travelled in the car being 78% private usage.

[172] It was submitted that the difficulty in the present case in calculating the value of the kilometre usage is that the Private Vehicle Expenses Guide published by RACQ, RACV and other motoring organisations do not include in their listing of vehicles Mercedes-Benz sports cars or any cars equivalent to the Mercedes-Benz sports car provided to Mr Seoud. The Respondent submitted that the RACQ Private Vehicle Expenses Guide states that calculations have been on the basis that costs include:[54]

• An annual distance travelled of 15,000 km;

• Annual depreciation for private vehicles calculated using the market rates for each manufacturer is taken from reputable pricing and vehicle data guides;

• Interest expense assuming that 100% of the total cost (including statutory and other on road costs) of the new vehicles has been financed with a secured loan through RACQ Bank which has a 5 year term with monthly repayments and an assumed market competitive fixed interest rate of 6.17% with a $395 loan establishment fee;

• Premium unleaded fuel costs of 155.77 cents/litre;

• Fuel consumption based on ADR 81/01 standard fuel consumption test;

• A replacement set of 4 tyres during the 5 year period; and

• Servicing costs to the manufacturer's schedule.

[173] The Respondent submitted that it is also of importance to note that the RACQ's estimate of average cents per kilometre and average dollar costs per week result in the same calculation for both annual cost and the 5-year cost. The reason for this is that both estimates are based on the same data. The Respondent set out that by way of example, if one takes the RACQ 2019 data for the Ford Mustang fastback GT 5 L V8 Coupe, there is an annual cost of $17,538.45. In this example 116.92 cents per kilometre times 15,000 km per annum equals $17,538 and $337.28 average weekly cost over 52 weeks equals $17,538.

[178] The Respondent submitted that it is possible to apply the data for the abovementioned vehicles and modify that data where appropriate to the Mercedes-Benz convertible sports car in question. It was submitted that in applying the Fewings method to the present case, the Respondent has calculated that the weekly benefit derived by Mr Seoud from the provision of the Mercedes-Benz sports car was not less than $701.85, calculated as follows:[56]

Interest on loan (total for 8 months $6403.91 equals per week)

Tyres (not replaced but assume midpoint of comparators)

Service/repairs (not done but assume midpoint of comparators)

[179] The Respondent noted that a weekly figure of $781.85 equals an annual cost of $40,656.20, and that in applying the RACQ average annual distance travelled of 15,000 km to an annual cost of $40,656.85 results in a cents kilometre cost of 271 cents per kilometre. It was submitted that the "best" way of calculating the cost of the Mercedes-Benz sports car is to multiply the costs of the Mercedes-Benz E 200 x 1.879; the reasoning being that the Mercedes-Benz's C 63 in 2019 was 1.879 times the cost of the E200 in 2018. It was further submitted that in adopting this method, the Mercedes-Benz sports car would have a cost of 283 cents per kilometre, which is close to the Respondent's original submissions of 271 cents per kilometre.

[180] It was submitted that the length of time by reference to which the percentage of private/business use can be calculated, arguably in Mr Seoud's favour, at a maximum of 31.85 weeks calculated as follows:

[181] In reply submissions, the Respondent submitted that:[57]

• Applying 15,000 km per annum as per the RACQ guidelines and a cost of $2.83 per kilometre results annual cost of the Mercedes-Benz AMG C 63 of $42,450; and

• Applying a personal usage rate of 78% to the annual cost of $42,450, results in a private use benefit to Mr Seoud from his use of the Mercedes-Benz AMG C 63 of $33,111 p.a; or

• Alternatively, the private benefit is $32,627 calculated as follows:

(12 months x 11,085 kms)/9 months = 14,780 kms (annualised travel distance)

Annualised car benefit 14,780 kms x $2.83 = $41,827.4

Business used percentage is 22% (100%- 78% private use).

Private used kms = 14,780 kms - 3,251 kms = 11,529 kms

Private used benefit to be included in Annual Earning = 11,529 kms x

[182] The Respondent submitted that Mr Seoud acknowledges that he received a personal benefit from use of the car but maintains that his personal use of the car totalled only 1,950 km with a total personal benefit of $3,900 assuming a $2 per kilometre cost base. The Respondent submitted that there are three points of divergence between Mr Seoud's submissions and the Respondent's submissions in respect to the vehicle private use benefit. The three points of divergence are:[58]

• What percentage of the 11,085 km travelled by the Mercedes-Benz sports car was for Mr Seoud's personal use;

• What is an appropriate estimate of the cents per kilometre cost of the car; and

• Annualisation of the benefit.

[183] It was submitted that in response to a question from me, Mr Seoud conceded that when preparing his evidence about kilometre usage of the Mercedes-Benz sports car he characterised all travel from home to work and back as being for work purposes and was not aware of the fact that travelling to and from work and back is not a work use but a personal use. On this point, the Respondent directed the Commission to the decision of the Full Bench in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia[59] at paragraph [11] which says:

**"**His Honour was also correct in holding at [17] that an employee's travel between home and normal place of employment is personal rather than work related travel and in his satisfaction that he should consider the benefit for assessing whether the high income threshold applied."

[184] The Respondent submitted that the Mercedes-Benz sports car was provided to Mr Seoud about ten months after his employment commenced. He was able to do his job prior to the provision of the car. Nothing had changed in April 2019 that required the vehicle to be supplied to him to enable him to perform his work duties. He could have continued, and he would have continued to be able to do his job without the car.

[185] The Respondent referred to the submissions of Mr Seoud below at [235], in which Mr Seoud submitted that an "aggressive calculation" of the cents per kilometre cost of the Mercedes-Benz sports car would be $2 per kilometre. It was submitted that in putting forward the figure of $2 per kilometre, Mr Seoud has not analysed the information provided by RACQ on the methodology it used to calculate the cents per kilometre cost of vehicles. It was further submitted that Mr Seoud has made no attempt to analyse how he gets to a figure of $2 per kilometre one is simply left with the "broad-brush" assertion that the figure of $2 per kilometre is "an aggressive calculation".[60]

[186] The Respondent submitted, in summary, that depending on the allowance for the accommodation, the calculation of Mr Seoud's annual earnings range between $171,083 and $190,711 with the result that Mr Seoud's annual earnings exceeds the high income threshold. Relevant to this submission, the Respondent provided a spreadsheet, as reproduced below:[61]

[187] The Respondent submitted that when preparing its final submissions, it anticipated that to rely on the written Accommodation and Vehicle Agreements would unduly and unnecessarily complicate the resolution of the jurisdictional objection. Accordingly, although the Respondent does not resile from the integrity of those agreements, the Respondent's submissions were not and are not based on the agreements.

[188] The Respondent strongly refutes Mr Seoud's submission that its jurisdictional objection is an abuse of process intended only to create costs and cause delay. The Respondent submitted that it has carefully and thoroughly analysed the evidence before the Commission and submits that its analysis of the evidence clearly establishes that Mr Seoud's application was filed out of time and his annual earnings exceeded the high income threshold.[62]

[189] The Respondent submitted for the above reasons, it should follow that the application should be dismissed.

[190] Mr Seoud made two witness statements and appeared and gave evidence at the jurisdiction hearing. He stated that he was a Director of the Respondent between 12 June 2018 and 17 December 2019.

[191] Mr Seoud stated that as part of the corporate structuring of the Respondent and business operations it was necessary for the Respondent to have a prestige motor vehicle for work purposes. The Respondent obtained finance from Metro Finance Pty Ltd and acquired a Mercedes-Benz AMG C63 for $184,000. Mr Seoud agreed to be a guarantor of the finance arrangement with Metro Finance Pty Ltd given he was a Director of the Respondent at the time. Mr Buckley and Clarson Holdings were the other co-guarantors.

[192] Mr Seoud stated that the Mercedes-Benz sports car was used by various employees of the Respondent for work-related purposes. He said that it was not provided to him as part of any specific employment arrangement, personal benefit or personal use. He considered that the vehicle was used as a promotional tool for the Club's business, VIP transport of strippers to and from airports and their places of residence, and to transport VIP clients to and from the venue and their residences.[63]

[193] His evidence is that he also used the vehicle for other work-related purposes such as collecting produce, banking, commerce, transporting of plant and equipment and to assist Mr Buckley's children with their transport requirements. Mr Seoud annexed a spreadsheet with the approximate estimated vehicle usage, which is reproduced below:

Monday - Sunday - During the Day; [address redacted] Surface Paradise

[address redacted] Surfers Paradise QLD, 4217, to [address redacted] Surfers Paradise

Job Responsibilities that required the use of the vehicle:

1. Shopping for Toybox; purchase drinks and alcohol from supermarket:

[address redacted] Surface Paradise QLD, 4217 to Southport, to Surfers Paradise Boulevard, Surfers Paradise

[address redacted] Surfers Paradise QLD, 4217 to Bundall [address redacted] Chevron Island, to [address redacted] Surfers Paradise Boulevard, Surfers Paradise

[address redacted] Surfers Paradise QLD, 4217 to Bundull, to [address redacted] Surfers Paradise Boulevard, Surfers

[address redacted] Surfers Paradise QLD, 4217 to Bundull, to [address redacted] Surfers Paradise Boulevard, Surfers

[address redacted] Surfers Paradise QLD, 4217 to Harbour town in Labrador, to [address redacted] Surfers Paradise

[address redacted] Surfers Paradise QLD, 4217 to Ashmore, to [address redacted] Surfers Paradise Boulevard, Surfers

[address redacted] Surfers Paradise QLD, 4217 to Ashmore, to [address redacted] Surfers Paradise Boulevard, Surfers

[address redacted] Palm Avenue Surfers Paradise, 4217 to Surfers Paradise Boulevard, Surfers to [address redacted] Palm Avenue Surfers Paradise, 4217

2. Picking up clients from various addresses to bring them to the club if limo was not available. This was apart of our free service.

[address redacted] Surfers Paradise QLD, 4217 to pick up clients from various locations within 20km radius, to [address redacted] Surfers Paradise QLD, 4217

3. Picked up dancers from airport that travelled from interstate for shows

[address redacted] Palm Avenue Surfers Paradise, 4217 Gold Coast Airport to [address redacted] Surfers Paradise QLD, 4217

4. Afterwork would drop of[f] dancers from airport that travelled from interstate from shows

[address redacted] Surfers Paradise QLD, 4217, to (Addresses varied), to

[address redacted] Palm Avenue Surfers Paradise QLD, 4217 to Brisbane (Boxing Location), to

[address redacted] Palm Avenue Surfers Paradise QLD, 4217 to Tweed Heads (Boxing Location), to

[address redacted] Palm Avenue Surfers Paradise QLD, 4217 to Tweed Heads (Boxing Location), to

4. Pick up and take Promotional models to boxing events

[address redacted] Palm Avenue Surfers Paradise QLD, 4217 to boxing events, to

The locations varied from picking up children from home addresses to take to and from school, and several appointments when

[address redacted] Surfers Paradise QLD, 4217 to pick up clients; addresses varied to [address redacted] Surfers Paradise QLD, 4217

[194] Mr Seoud stated that in addition to his use of the vehicle, it was frequently used by Mr Torrington for work purposes such as collecting VIP clients. He stated that Mr Torrington would use the vehicle for personal use and would take the car for in excess of 12 hours at a time.[64]

[195] Mr Seoud estimated that he would have used the Mercedes-Benz sports car for personal use no more than 1,950 kilometres over the course of his employment with the Respondent. Upon collection of the vehicle there was about 150 kilometres already on the odometer, and at time of returning the vehicle to the Respondent there was 11,059 kilometres on the odometer. A copy of an image of the Mercedes-Benz sports car's odometer reading was annexed to Mr Seoud's first witness statement.[65]

[196] Mr Seoud agreed that the Respondent owned two other vehicles which the Club used. However, the stretch Ford limousine would often break down and the Mercedes-Benz sports car was used instead due to the time it took to have the Ford limousine repaired.[66] Mr Seoud stated that only he and Mr Torrington were licensed to drive the vehicles.

[197] Mr Seoud stated that in February 2019 he discussed with Mr Buckley the purchase of two vehicles for the Respondent's business. He stated that Mr Buckley wanted to get a Range Rover SVR valued at $290,00 and told him to get another vehicle for the business for tax purposes. The Range Rover SVR was leased through Ultra Tune and the Mercedes-Benz sports car was leased through the Respondent entity.[67] Mr Seoud stated that there was never any discussion that the Mercedes-Benz sports car would be solely used by him and/or that it was part of his salary package.

[198] In response to the evidence of Mr Buckley above at [27], Mr Seoud stated that there were never any discussions between himself and Mr Buckley about formalising his residency at the Mantra Crown Towers apartment or that it was part of his salary package.[68] He stated that until the Respondent produced it in these proceedings, he had never seen the Accommodation Agreement dated 1 August 2018, as set out above at [68], and he did not sign that document.

Mr Seoud: Hi mate, I tried paying for the transportation for the vehicle to Melbourne with the company card and it's been declined. And it's showing that there's money in it but do you know why:

Mr Seoud: Oh, OK, I'll keep the receipts and get reimbursed. Thank you.

Mr Buckley: Tara has the card. I told her to cut it.

Mr Buckley: Anthony will call you re car. You need to tell me if you're accepting a position at Ultra Tune.

Mr Seoud: I'm not coming to Melbourne, Sean at this stage. It's not safe for me You and I need to work this exit strategy because Toy Box with what's happening now I need to get my name out of Toy Box and I'd prefer to do this between you and I, not third parties. I'm happy to resign as a director and resign as a licensee.

Mr Buckley: No need to resign. So you're not going to work in Melbourne

Mr Seoud: Sean, I can't until it's deemed safe. I hope you understand the seriousness of the situation I'm not in any state or frame of mind right now as this has affected my mental status. I want to be in sound mind to be able to give 100% and UT.

Mr Seoud: No. I don't even feel safe in Bali because I was attacked from the same group. Can I talk to you tomorrow? Please, I'm not feeling well.

Mr Seoud: Are you in a hurry to get my belongings out of Crown Mantra?

[215] Mr Seoud then received a text from Mr Swords and replied as follows:

"Thankyou for offering your help but I have already started the process in moving my stuff out as I told Sean it will be done. As for the car Sean knowns it been transported to Melbourne and it's in transaction!! So I'm all good mate Thankyou !!!"

[216] The text messages between Mr Seoud and Mr Buckley continued:

Mr Seoud: I feel that I've been pushed out very quickly and that's a priority for you. Look what I'm going through. Please let me leave peacefully. It's Christmas next week. I told you everything will be out by the second week of January. I don't need Anthony or anyone to help. Thank you and no disrespect to Anthony but I told you I have this under control. What's the rush?

Mr Buckley: You need to get out of the Gold Coast. You'll be offered a position in Ultra Tune. The contract is being prepared as we speak. I'm not pushing you I'm trying to protect you.

[217] Mr Seoud stated that his life had been threatened and he was assaulted, and further assaulted by the same gang in Bali. He stated that Mr Buckley had told him not to come back to work after 23 November 2019 as the gang wanted to extort the business.

[218] His wages ceased on 18 December 2019 and he only received half of his normal nett pay. That was the last time he was paid. He wrote an email asking why he didn't receive a full pay but did not receive a reply.

[219] Relevant to the date of dismissal, Mr Seoud stated that 27 December 2019 was the day that he was first made aware his employment with the Respondent was terminated. He stated that is why he lodged the application when he did; he was fully aware of the 21-day time limit.

Whether application lodged more than 21 days after dismissal took effect

[220] Mr Seoud submitted that the Respondent's assertions that the application had been made out of time is 'nonsense'.[71] The letter from Mr Hone to Mr Seoud dated 27 December 2019 constitutes the dismissal for the following reasons:[72]

• There is no "board of directors" of the Respondent. There was no evidence led relating to the existence of a "board" given there were only two directors being Mr Seoud and Mr Buckley;

• The removal of an individual as a director of a company that is his employer is by no means tacit acceptance of termination. There needs to be something much more meaningful and preferably in writing pointing to this; and

• The letter sets out in detail alleged breaches leading to summary termination - for the first time mentioned to Mr Seoud.

[221] Mr Seoud submitted that if the Commission found that the application had been made outside of the 21 day time limit, the Commission is invited to take into account the following:[73]

• The delay was caused given the elapse of time over the Christmas/New Year period whereby Mr Seoud could not source legal advice given the normal closure of law offices in Queensland or Victoria; and

• The fact that Mr Seoud did not know he was terminated either on 16 or 17 December 2019. The level of ambiguity of these dates would allow the Commission to favor the later date of 27 December 2019.

[222] Mr Seoud submitted that the Mantra Crown Towers apartment was "couched" in a document titled "Accommodation Agreement".[74] This Agreement was purportedly signed in August 2018 between Clarson Properties Pty Ltd and Mr Seoud. Clarson Properties Pty Ltd is apparently the registered proprietor of the Apartment but no evidence such as a title search was led to confirm that fact.

[223] It was submitted that the Accommodation Agreement is poorly drafted, complete with unclear terms, phrases and spelling errors. There is nothing in the Accommodation Agreement that conveys any benefit of the Mantra Crown Towers apartment on any person let alone Mr Seoud.

[224] Recital D claims that the Accommodation Agreement is an amendment to Mr Seoud's employment contract. It was submitted that there is nothing in the Accommodation Agreement that points to exactly what it is that is sought to amend Mr Seoud's employment contract. There is a definition of "Accommodation" in Clause 1 but then does not appear anywhere else in the Agreement. Mr Seoud submitted that if nothing else the Accommodation Agreement as a matter of contract law is entirely void for ambiguity with no aspect enforceable against any party to the agreement. There is no offer and no consideration as required to form a valid and binding contract.[75]

[225] With respect to the evidence of Mr Buckley, Mr Seoud referred to Mr Buckley's witness statement which at paragraph 10 sets out that he allegedly said to Mr Seoud that they needed to formalise some supposed living arrangements with respect to the Mantra Crown Towers apartment. It was submitted that under cross-examination, Mr Buckley could not recollect when or where he made that comment and was vague as to whether in fact he made those comments.[76]

[226] Mr Seoud submitted that there was significant discussion with Mr Buckley under cross-examination about the Accommodation Agreement. However, Mr Buckley could not give any details about the agreement, when it was signed, who he gave instructions to prepare it, who prepared it or what the agreement actually intended to convey. It was further submitted that Mr Buckley claims to have approximately 30 to 40 properties and he could not tell the Commission if any of his employees reside in them or if they have agreements like the one in question. Mr Seoud submitted that it later came out in further evidence that none of the other properties lived in by other employees have any agreements like the Accommodation Agreement.

[234] Mr Seoud noted that the Mercedes-Benz sports car cost in excess of $180,000 and was purchased by the Respondent on or about March 2019 under a hire purchase agreement. At the time Mr Seoud was a director of the Respondent entity who signed the hire purchase agreement, and he also went personal guarantor under the terms of the hire purchase agreement. Mr Seoud submitted that his evidence is:

• The Mercedes-Benz sports car was not provided to him as part of his salary package;

• The Mercedes-Benz sports car was a piece of equipment provided to him for him to discharge his employment duties;

• He did derive a personal benefit from the use of the Mercedes-Benz sports car;

• The quantum of private benefit from the private use of the Mercedes-Benz sports car was not at a sufficient level to take his salary beyond the jurisdictional threshold; and

• He did not sign and has never seen the Motor Vehicle Agreement until the proceedings in this matter were commenced.[79]

[235] With regards to the personal benefit derived from the Mercedes-Benz sports car, Mr Seoud submitted that per the table set out in his evidence above at paragraph [193], the total personal use of the vehicle was 1,950 km. It was submitted that on an "aggressive calculation" and estimate of $2 per kilometre Mr Seoud derived a personal benefit of $3,900.[80]

[236] Relevant to the evidence of Mr Buckley, Mr Seoud submitted that Mr Buckley claims that Mr Seoud proposed to him to purchase the car and that it be part of his salary package. It was submitted that Mr Buckley could advance no level of detail regarding this proposition allegedly made by Mr Seoud, and it is open to the Commission to disregard this aspect of Mr Buckley's evidence. It was further submitted that when Mr Buckley was cross-examined about the Motor Vehicle Agreement he could not recall ever signing it or when he signed it.

[237] Mr Seoud submitted that Mr Buckley could not advise with any degree of certainty if the Mercedes-Benz sports car was provided to Mr Seoud as a fringe benefit. It was submitted that it is important to note that Mr Buckley is a director of the Respondent and as Mr Seoud's employer it could reasonably be expected that this level of detail would be known to Mr Buckley.

[249] Mr Seoud submitted that the Respondent ought to be embarrassed about the way it has prosecuted its case in attempting to mislead the Commission by the production of falsified documents and attempting to retrospectively create a benefit for an employee that is claiming unfair dismissal. To also proffer witnesses who had a clear lack of knowledge of the case, the intricacies of the employment arrangement, ATO responsibilities, had significant departures of recollection of facts orally as set out in their written statements all point to the fact that the Respondent is attempting to avoid a bona fide unfair dismissal claim in raising a technical legal argument without basis.

[250] It was submitted that the Respondent's jurisdictional challenge was flawed from the outset containing dubious witness statements and "less than convincing" witnesses giving oral evidence.[83] It was further submitted that the Respondent's arguments were defective, its witnesses were unreliable and prone to providing evidence being provided verbally on the run with some witnesses having unfortunate but convenient lapses of confusion and memory.

[251] Mr Seoud submitted that the quantum of personal benefit derived by him from the car was negligible at less than $4,000, and he did not receive any benefit from accommodation from the Respondent as part of his salary package. It was submitted that, by way of alternative analysis, the Respondent has abused the Commission's processes by raising a dubious and tenuous jurisdictional issue to prohibit a bona fide claim by Mr Seoud. He urged the Commission to dismiss the jurisdictional challenge and allow him to prosecute his unfair dismissal claim.

[252] Before consideration is given to the merits of the Applicant's substantive unfair dismissal application, the Commission is required by s.396 of the Act to determine certain matters, as follows:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 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 Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

[253] With respect to whether the application was made within the required period, the Act provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

[254] Pursuant to s.396(b) of the Act, the Commission must also determine whether the Applicant is a person protected from unfair dismissal. Section 382 of the Act provides for when a person is protected from unfair dismissal, as follows:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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

(ii) An enterprise agreement applies to the person in relation to their 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." [emphasis added]

[255] Section 332 of the Act sets out the definition of "earnings" of an employee, as follows:

(b) amounts applied or dealt with in any way on the employee's behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the Employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.

[256] Regulation 3.05(6) of the Regulations explains how to work out amounts for the purpose of assessing whether the high-income threshold applies in relation to the dismissal of a person at a particular time, as below:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person's employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

(c) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act."

[257] The threshold at the time of the Mr Seoud's dismissal was $148,700.00. I note that Mr Seoud was not employed pursuant to any modern award or enterprise agreement. The only modern award that could have application to the Club is the Hospitality Industry (General) Award 2020, and I note that Mr Seoud was too senior to be covered by the Managerial Staff (Hotels) classification.

[258] In Ayub v NSW Trains,[84] a Full Bench of this Commission stated:

"[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

"[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties"" [citations omitted]

[259] In considering how a dismissal may be effected pursuant to the Act, when considering the common law general principle, a Full Bench in Commonwealth of Australia (Australian Taxation Office) v Wilson[85] determined that generally, a dismissal may not take effect prior to it being communicated to the employee.

[260] Relevant to how to treat s.394(2)(a) of the Act, the Full Bench said:[86]

".....the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal......if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document."

[261] An example was provided in the decision of an employee on an approved period of annual leave, holidaying away from home when a dismissal letter is delivered; the date of dismissal would not be the date of delivery of the letter, but when the employee returns home and first has a reasonable opportunity to read the letter.

[262] It was held in Ayub that Mr Ayub was not aware of his dismissal until the first reasonable opportunity Mr Ayub had to read the letter of termination, and the earlier date of 14 January 2016 was rejected by the Full Bench. Accordingly, Mr Ayub made his application within 21 days of the date that he read the letter, and no extension of time under s.394(3) was required.

Applicable Case Law - provision of a motor vehicle

[263] Whilst it is true that I am not bound to have regard to the Commissions' Unfair dismissals bench book, I consider that it provides a helpful summary as to how the provision of a vehicle should be treated, having regard to authorities on this issue:

"Where an employer provides an employee with a fully maintained vehicle the value of the private use of the vehicle can be included in the annual rate of earnings.[87] Use for business purposes is excluded and only the proportion of private usage can be counted as remuneration.[88]

Where there is no agreed monetary value of the benefit of the private use of a motor vehicle, the Commission will generally apply the following formula:[89]

1. Determine the annual distance travelled by the vehicle in question.
2. Determine the percentage of that distance that was for private use.
3. Multiply the above two figures to obtain the annual distance travelled for private purposes.
4. Estimate the cost per kilometre for a vehicle of that type (may be obtained from RACV, NRMA or other similar motoring association).
5. Multiply the annual distance travelled for private purposes (obtained at step 3) by the estimated cost per kilometre.

The figure obtained is the value of the vehicle to the employee and is added to remuneration....."[90]

[264] It is clear that there was a great deal of turmoil in Mr Seoud's life in late November 2019 and including December 2019. On the evidence before the Commission he was in fear of his life from a Gold Coast based gang. The reasons why are either that he owed them a drug debt, or the gang was taking the opportunity to extort the Club by demanding protection money.

[265] It was agreed with Mr Buckley that Mr Seoud would hide out in Bali for some time, and this was, as I understand it, recommended by a Police Taskforce on the basis that Mr Seoud's life was in danger on the Gold Coast.

[266] Mr Seoud initially hid out in Brisbane after leaving the Gold Coast, visited Bali for approximately 11 days and returned to Brisbane on 15 December 2019. It appears that Mr Buckley was not aware that he had returned to Brisbane on this date. Mr Seoud's evidence is that whilst in Bali, the same or affiliated gang bashed him.

[267] On 16 December 2019 Mr Seoud knew that he was being removed from the free accommodation that had been provided to him for some years; longer than his employment with the Respondent. The text messages between Mr Seoud and Mr Buckley on 16 December 2019 demonstrate Mr Seoud's awareness that he was being evicted from the property. Removal from the free accommodation does not equate to a clear and definitive notification of termination, however the remainder of the text messages between Mr Seoud and Mr Buckley assists with understanding the discussions at the time.

[268] Mr Seoud stated that he was happy to resign as both a director of the Respondent and licensee of the Club. Mr Buckley stated that was not necessary and pressed whether Mr Seoud would be coming to Melbourne to work within Ultra Tune. Mr Seoud stated that he was not ready to.

[269] On this same date Mr Seoud was aware that the company-issued credit card was not operative. He stated to Mr Buckley that an exit strategy removing him from the Club was necessary, and he wanted to work that out directly with Mr Buckley, with no third-party intervention.

[270] There appears to me to have been no future for Mr Seoud at the Club given the many external issues going on with Mr Seoud. It is clear to me that by 16 December 2019 Mr Buckley had stated to Mr Seoud that he needed to leave the Gold Coast. He also assured Mr Seoud that he was not trying to push him but was trying to protect him.

"I feel that I've been pushed out very quickly and that's a priority for you. Look what I'm going through. Please let me leave peacefully. It's Christmas next week. I told you everything will be out by the second week of January. I don't need Anthony or anyone to help. Thank you and no disrespect to Anthony but I told you I have this under control. What's the rush?"

"You need to get out of the Gold Coast. You'll be offered a position in Ultra Tune. The contract is being prepared as we speak. I'm not pushing you I'm trying to protect you."

[276] I conclude that Mr Seoud had understood he did not have a future with the Respondent, but he was seeking to slow down the action to remove him from the Club and the apartment. He was pleading to have available the apartment until the second week of January 2020. Mr Buckley rejected this and informed him that he needs to leave the Gold Coast for his safety, and he'll be offered a role in Ultra Tune [in Melbourne].

[277] The act of removing Mr Seoud as a director of the Respondent was taken the following day.

[278] I determine that Mr Seoud's knowledge of his eviction from the apartment on 16 December 2019, coupled with the messages between himself and Mr Buckley, with Mr Buckley's statement that Mr Seoud needed to leave the Gold Coast constitutes a dismissal. I do not accept that the first time Mr Seoud became aware of the dismissal was on 27 December 2019 when he received a letter on behalf of Ultra Tune withdrawing the employment offer made to him. This is demonstrably clear by virtue of the fact that the letter details Mr Seoud's conduct in contacting Mr Buckley's former partner and current partner, which Mr Buckley considered constituted a threat. At that point in time the vehicle was also being "hidden" by Mr Seoud somewhere in Melbourne.

[279] I conclude that Mr Seoud did not consider the employment relationship on foot up until he received the letter dated 27 December 2019. It is implausible and factually incorrect.

[280] Accordingly, I don't accept 27 December 2019 as the date of the dismissal and find that the employment ended between 16 December 2019 and 18 December 2019. The application was filed on 13 January 2020 and therefore has been made up to seven days beyond the 21-day time limit and as low as five days beyond the 21-day time limit.

[281] I have given some weight to Mr Seoud's application where he nominated 18 December 2019 and greater weight to the factual contest before me. For the application to have been made within time, Mr Seoud would need to satisfy the Commission that his employment was still on foot as at 23 December 2019. He is unable to do so, and on the evidence available to the Commission, including the text messages, the removal of Mr Seoud from the apartment and as a director, and Mr Buckley's text that he needs to leave the Gold Coast, I conclude that the dismissal took effect no later than 18 December 2019.

[283] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[91] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

[284] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[92] a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[93] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[94]

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional." [original emphasis]

[285] During the hearing Mr Seoud asserted that he considered he first learned of the dismissal on 27 December 2019. He stated that he was aware of the 21-day time limit in which to bring an application. Essentially, Mr Seoud does not consider that his application has been made out of time.

[286] I do not consider this marries with his conduct between 16 December 2019 and 27 December 2019 where:

• (a) it appears he had full knowledge he could no longer live in the apartment;

• (b) he had knowledge the company credit card had been cut up and was not available for his use;

• (c) he received only a half pay on 18 December 2019;

• (d) he wasn't attending for work;

• (e) he had been offered a role in Melbourne and stated that he wasn't ready to go to Melbourne;

• (f) he was transporting the vehicle to Melbourne but not to Mr Buckley; and

• (g) he was liaising with Mr Buckley's current and former partners when it would be unnecessary to do so.

[287] Mr Seoud did not offer up any suitable explanation for the reason for the delay other than to assert that he considered he was first notified of the dismissal on 27 December 2019, despite the application that he prepared himself nominating 18 December 2019 as the effective date of dismissal. It was submitted on his behalf that due to the period of the year it would have been difficult to obtain legal advice, however Mr Seoud ended up completing the application himself. He did not lead any evidence that he sought legal advice or was unable to obtain legal advice.

[288] In line with the authority in Nulty, I am not satisfied that Mr Seoud has demonstrated exceptional circumstances for the period of the delay. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.

Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[289] I understand Mr Seoud's submission that he first became aware of the dismissal on 27 December 2019. As stated above, it is a submission which I do not accept. For Mr Seoud's application to have been made within the 21-day time limit, he would have had to have been dismissed no earlier than 23 December 2019. On the evidence before me, I do not accept that Mr Seoud considered the employment on foot as at 23 December 2019.

[290] Mr Buckley had informed him he needed to leave the Gold Coast on 16 December 2019, and he had a job for him within Ultra Tune in Melbourne in the new year. I consider that Mr Seoud understood his position with the Respondent had ended; he wasn't returning to the Club. This weighs against the exercise of the discretion to grant an extension of time.

Section 394(3)(c)- Any action taken by the person to dispute the dismissal

[291] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[95]

[292] Mr Seoud did a number of things as alleged by Ultra Tune in the letter dated 27 December 2019. It is not necessary for the Commission to make findings as to whether there was attempted extortion.

[293] Mr Seoud has not provided any evidence to the Commission that he was making requests of Mr Buckley to resume his duties with the Respondent. His language was in agreement that he needed to exit the Club's business, but it was a matter of timing. He didn't wish to be rushed out of the accommodation but had resigned himself to it occurring.

[294] Mr Seoud stated that he had sent an email to Ultra Tune asking why he received a half pay on 18 December 2019, but he has not produced the email purportedly sent.

[295] Mr Seoud's inaction to dispute the dismissal weighs against the exercise of the discretion to grant an extension of time.

Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[296] The delay of five to seven days will not cause any prejudice to the employer. This is a neutral factor when considering whether to exercise the discretion to grant an extension.

Section 394(3)(e) - The merits of the application

[297] In the matter of Kornicki v Telstra-Network Technology Group[96] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:[97]

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[298] The reason for the dismissal, it seems, was the concern Mr Buckley held for Mr Seoud's safety. It would be impossible for the Commission to ascertain the factual reasons why Mr Seoud was assaulted whilst at work at the Club, or while in Bali. Mr Seoud had already discovered that he was not eligible to bring a claim of workers compensation on account of the fact that he was a director when assaulted, and pursuant to Queensland legislation, ineligible to successfully bring a claim.

[299] On his own admissions, Mr Seoud's future at the Club did not look bright. He informed Mr Buckley there would need to be an exit strategy. Mr Buckley replied that a contract was being prepared [with Ultra Tune in Melbourne].

[300] The letter of 27 December 2019 detailed alleged breaches Mr Seoud engaged in during the employment, yet it clearly did not form part of the reasons for the dismissal on 16-18 December 2019. This is demonstrably clear because Mr Seoud was offered employment with Ultra Tune on 19 December 2019. The allegations in the letter of 27 December 2019 only arose after 19 December 2019.

[301] I consider that the application has only the slightest merit opportunity. It is not a strong case but cannot be said to be completely hopeless. I consider merit to be a neutral factor when considering the discretion to grant an extension.

Section 394(3)(f) - Fairness as between the person and other person in a similar position

[302] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:[98]

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

[303] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.[99] Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[304] I am not satisfied that the issue of fairness as between Mr Seoud and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

[305] Having considered all of the matters to which my attention is directed by the Act, I am

not satisfied there are exceptional circumstances which would warrant granting an exception

[306] Mr Seoud's circumstances are not out of the ordinary course, unusual, special or uncommon.

[307] As Mr Seoud has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.

[308] I order that the application be dismissed.

[309] However, given the other jurisdictional issue before the Commission, I consider it would be inappropriate not to provide my consideration of those issues, given they are important issues, and in the event the out of time finding is determined to be incorrect.

Consideration of accommodation provided to Mr Seoud

[310] Mr Seoud has, for many years, enjoyed the benefit of accommodation provided to him at no cost. Whilst in Melbourne it was provided at the election of Mr Buckley while Mr Seoud was his friend, and later when Mr Seoud "contracted" to Ultra Tune for the provision of services described by Mr Buckley as driving Mr Buckley to and from court, doing whatever Mr Buckley required him to do, and being Mr Buckley's companion.

[311] Mr Buckley describes the provision of benefits to employees and associates as being provided by him, regardless of which corporate entity owns the property or makes payments to individuals. Curiously, Mr Buckley considers that he can do what he wishes with his various corporate entities because he is the sole shareholder. He appears to me to have had little regard to some of the requirements under the Corporations Act 2001 involving directors' responsibilities, various taxation laws, spectacularly with regard to fringe benefits tax, and superannuation legislation.

[312] When Mr Seoud was providing so-called consultancy services to Ultra Tune in Melbourne, he was paid tax-free payments without the provision of an invoice. Ms Robyn Bull simply paid Mr Seoud whatever amount Mr Buckley directed her to pay to him. As I understand it, no provision of superannuation was paid to Mr Seoud on account of his services. As a sole trader, it appears to me he may be entitled to superannuation on account of the services provided by him being predominantly for labour. Mr Seoud stated that he declared the payments made to him to the taxation office. Presumably he declared that he was running a business.

[313] On arrival in Queensland, Mr Seoud continued to do work for Mr Buckley (through his various entities) and oversaw building works. He lived rent-free in the accommodation in Surfers Paradise, while still occupying the apartment in Melbourne. He continued to live in the Surfers Paradise accommodation rent-free when he commenced employment with the Respondent. It wasn't a new thing; it was a continuation of the arrangement.

[314] This purported document has an extraordinarily curious existence. The evidence of some of the Respondent's witnesses relevant to this document stink like a three-day old rotted fish head. In no uncertain terms, I consider false evidence was provided to the Commission by some witnesses and the Accommodation Agreement was fabricated. Here are my reasons:

(i) I accept that Mr Swords did travel to Brisbane on 18 August 2018 and travel to the Gold Coast. I do not consider it was for the reason stated by him for doing so;

(ii) I do not accept his evidence that he had with him an original of the Accommodation Agreement and either met with Mr Seoud at the Club or at Mr Seoud's accommodation and Mr Seoud executed the agreement with Mr Swords witnessing his signature;

(iii) Mr Swords' written evidence was that he met with Mr Seoud at the Club to execute the agreement but could not photocopy it as there was an issue with the photocopier. This evidence changed during the hearing where Mr Swords stated that he met with Mr Seoud at the apartment where Mr Seoud was in his underwear, sweating profusely, coming down from a suspected drug bender;

(iv) Mr Swords stated that Mr Seoud had a home office but could not photocopy the executed agreement because of an issue with the photocopier. Mr Swords stated he wished to leave the apartment as soon as possible. He then said offered to go the Club or to Officeworks to have a photocopy made;

(v) I put to Mr Swords if he had, in fact, witnessed Mr Seoud's signature of the executed contract, why wouldn't he take a photo of it on his phone? He could not provide a suitable explanation, yet Mr Swords has been quick to use the camera on his phone on other occasions relevant to Mr Seoud, including taking photos of his brother in the apartment lobby;

(vi) Mr Swords presumed that Mr Seoud sent by post the executed Accommodation Agreement, yet no original could be found by the Respondent in its corporate head office;

(vii) I do not accept Mr Seoud's evidence that he viewed the Accommodation Agreement in Mr Seoud's personal documents when assisting to remove Mr Seoud's belongings from the Club;

(viii) No emails relevant to Mr Seoud purportedly sending an executed agreement could be found by the Respondent. Conveniently no electronic record of Mr Swords purportedly receiving the agreement for execution can be found on account of him having picked it up from an out tray in the office;

(ix) Most disturbingly, Mr Seoud's signature appears to me to have been copied onto the Accommodation Agreement, as it is not in his usual place of signing. I therefore conclude that Mr Swords could not have witnessed Mr Seoud signing the Accommodation Agreement as is his evidence.

(i) Mr Truong presented as a witness with very little credibility;

(ii) He stated that he did not prepare the Accommodation Agreement. He had spoken with Mr Chong who declared he had not prepared the Accommodation Agreement;

(iii) Mr Truong was unable to say how the Accommodation Agreement varies the employment agreement between Mr Seoud and the Respondent. Mr Curtis pointed out to Mr Truong that the Accommodation Agreement was so poorly worded it is vague and unintelligible. Mr Truong was not able to assist with how it varied Mr Seoud's employment agreement;

(iv) Mr Truong stated that if he needed Mr Swords to have a person execute an agreement, he would typically email Mr Swords the agreement. He has no explanation as to why this did not occur with the Accommodation Agreement;

(v) Mr Truong stated that the accounts department had a copy of the executed agreement, but it was not available in electronic means. He stated that he does not how it was delivered to the Ultra Tune head office.

[315] It is my view that both Mr Swords and Mr Truong gave false and misleading evidence to the Commission. If I am correct in my view, this is particularly disappointing in Mr Truong's case as he is an in-house solicitor for Ultra Tune.

[316] I accept Mr Seoud's evidence that he had not sighted the Accommodation Agreement until it was produced by the Respondent in these proceedings. I accept that it is not his signature on the purported agreement, and his usual signature has been copied by a person onto the Agreement. The Respondent was unable to produce a soft copy of the Accommodation Agreement to help discover when it was first created; I consider this to be true because I am of the view that it was created recently for the purposes of these proceedings.

[317] In any event it is an extraordinarily poorly worded document and makes no sense at all. For example, "Accommodation" is a defined term and then never used within the agreement.

[318] Having determined that Mr Seoud did not enter into this purported agreement because it was never put to him for his signature, it is still true that Mr Seoud enjoyed living rent-free in the apartment during his employment with the Respondent. It is necessary to determine, having regard to Regulation 3.05(6)(a) if Mr Seoud is entitled to receive, or has received, a benefit in accordance with an agreement between Mr Seoud and the Respondent.

[319] I say the Respondent, as the Regulation describes the other party as "the person's employer", was Mr Seoud's employer. Not Mr Buckley, not Ultra Tune, but the Respondent.

[320] Much argument was put by the parties as to the apartment being owned by Clarson Properties Pty Ltd and not the Respondent, and whether this constitutes the benefit being provided by the Respondent. I have given a great deal of thought to this issue.

[321] Despite my findings that there is no signed agreement between Mr Seoud and the Respondent relevant to the provision of the accommodation, I consider that Mr Seoud received a benefit in accordance with an agreement between himself and the Respondent. While the Respondent does not own the accommodation, I do not find that the Regulation contemplates "the person's employer" as requiring ownership for the benefit to be agreed. I consider it to be a simpler exercise; did the Respondent and Mr Seoud agree for Mr Seoud to enjoy the benefit of the rent-free accommodation which constitutes the benefit? I consider this must be answered in the positive. I still consider this to be true even when the benefit was provided prior to the employment having commenced.

"My accommodation was included as part of my employment contract".

[325] I do not accept Mr Seoud's evidence that dancers were often accommodated at the apartment as part of the Respondent's arrangements. Mr Seoud could not point to any evidence where this was a requirement, or that he was directed to make available the second bedroom for the dancers. On the evidence before me, I determine that Mr Seoud enjoyed sole occupancy of the apartment, and if dancers, on occasion, slept there it was by his invitation.

[326] I reject Mr Seoud's submission that if the Commission were to attribute a notional money value it would be at $50 per week. I accept Mr Annable's evidence that the rent achievable for the apartment is at a minimum $725 per week. Mr Seoud enjoyed the benefit of the accommodation for the whole of the year prior to his dismissal, and therefore I estimate the notional money value of the accommodation at $37,700.

[327] I conclude that Mr Seoud's earnings including wages of $119,600 and the benefit of the accommodation being $37,700 total $157,300, in excess of the high income threshold of $148,700. Without requiring an examination of the provision of the vehicle, I would dismiss the application.

[328] I have concluded that the benefit of the accommodation to Mr Seoud was $37,700, noting this would take Mr Seoud's earnings in excess of the high income threshold. If I am incorrect about that, I consider it necessary to determine the benefit to Mr Seoud of the provision of the vehicle.

[329] The vehicle driven by Mr Seoud was an expensive one. There are no like vehicles available for examination in the RACQ data, although the Respondent did point to high-end vehicles to provide some sort of comparison. I accept the Respondent's calculations relevant to a 50% depreciation over a 5 year period.

[330] While Mr Seoud suggested that a kilometre rate of $2.00 was on the aggressive side, I disagree. The vehicle driven is a prestige vehicle. While I do not accept the Respondent's calculations at $2.71 per kilometre, I would find, if it were necessary to do so, the per kilometre rate should be $2.50.

[331] The vehicle was driven approximately 11,085 kilometres in the time Mr Seoud had use of the vehicle, which was less than one year. In his calculations, Mr Seoud included driving from the apartment to work and return as business kilometres. They are not business kilometres; they are private kilometres. As pointed out to Mr Seoud during the hearing, an employee is typically required, at their cost to attend work and return. Whether Mr Seoud worked from the Club during the day and returned at night when the Club opened, it is still a personal expense.

[332] After careful consideration I find only the following activities constituted business-related kilometres, and I accept the Respondent's submissions that it should count only for 31.85 weeks which I have rounded to 32 weeks:

• (a) Shopping - purchase drinks and alcohol from supermarket, 1 trip per week, 10km per trip, (32 weeks) = 320km;

• (b) Banking - 1 trip per week, 6km per trip, (32 weeks) = 192km;

• (c) Obtaining change - 1 trip per week, 6km per trip, (32 weeks) = 192km;

• (d) Hospitality purchases - 2 trips per month, 6km per trip, 8 months = 96km;

[336] As a percentage of 11,085km, this equals 55%.

[337] Given the vehicle was used for only 9 calendar months of the year, and not 12, it is first necessary to determine the annual kilometres if it had been used for all of the 12 months. I have conveniently multiplied the 11,085 kilometres by 1/3 to come to a total of 14,780 annual kilometres. The private usage of the vehicle was 55%. Annually that would be 8,129km.

[338] I have determined the per kilometre rate to be $2.50. Multiplying $2.50 by 8,129km = $20,322.50. This is the value of the private usage of the vehicle and is necessary to be added to Mr Seoud's annual earnings.

[339] If it were necessary to consider only Mr Seoud's annual salary of $119,600 and the benefit of the vehicle of $20,322.50, I would determine that his earnings equal $139,922.50 and therefore fall under the high income threshold.

[340] Relevant to the Motor Vehicle Agreement's existence, I make the same findings per the Accommodation Agreement. I consider that the Motor Vehicle Agreement is a recently created document for the purposes of these proceedings, and I accept Mr Seoud's evidence that he did not sign it. I reject Mr Swords' evidence on this issue and have serious doubts as to the Respondent's conduct in the production of this false document.

[341] I have determined that Mr Seoud's application has been made out of time and for the above reasons I have declined to grant an extension of time. The application is dismissed.

[342] I have considered it necessary to consider the alternative jurisdictional objection relevant to Mr Seoud's annual earnings. I have determined that the accommodation provided to him is a benefit pursuant to Regulation 3.05(6) and that I should exercise my discretion to include an amount of $37,700 to Mr Seoud's wages of $119,600. Mr Seoud's earnings are $157,300 and exceed the high income threshold. I would dismiss his application.

[343] I have determined the kilometres travelled by Mr Seoud during his employment and find that the private usage of the vehicle provided to him constituted 55% of the kilometres driven by him. Having relied on relevant authorities I have determined that an amount of $20,322.50 constitutes earnings for the provision of the vehicle. When added to the accommodation, this brings Mr Seoud's earnings to $177,622.50. I would dismiss his application. If I am incorrect about the value of the accommodation, Mr Seoud's earnings would be $139,922.50 and fall under the high income threshold.

[344] My comments relevant to the Respondent's witnesses, particularly Mr Truong and Mr Swords bear no reflection on the integrity of Mr Watts or Mr Hone. The conduct of Mr Watts and Mr Hone in their representation of the Respondent in these proceedings are without criticism and they responsibly dealt with the material they had before them.

L Watts, Counsel for the Respondent, instructed by I Hone, Solicitor, and T Troung, Solicitor.

Final written submissions of the Applicant, 1 June 2020.

Final written submissions of the Respondent, 1 June 2020.

Final written submissions of the Applicant in Reply, 5 June 2020.

Final written submissions of the Respondent in Reply, 5 June 2020.

[1] ASIC Current Company Extract, Clarson Properties Pty Ltd ACN 161 591 680, 19 May 2020.

[2] ASIC Current Company Extract, Clarson Holdings Pty. Ltd. ACN 085 809 123, 19 May 2020.

[3] Witness Statement of Mr Peter Sean Buckley, 17 April 2020, Annexure "SB-1".

[8] Witness Statement of Mr Peter Sean Buckley, 5 May 2020, Annexure "SB-2".

[9] Witness Statement of Robyn Bull, 5 May 2020, Paragraph [2] and Annexure "RB-2".

[10] Witness Statement of Anthony Swords, 4 May 2020, Paragraph [5].

[23] Witness Statement of Tarah Bull, 5 May 2020, Paragraph [5].

[24] Witness Statement of Joshua Torrington, 20 April 2020, Paragraph [4].

[28] Witness Statement of Tarra Mann-McLean, 20 April 2020, Paragraph [12].

[32] Witness Statement of Tarra Mann-McLean, 5 May 2020, Paragraph [3] and Annexure "TMM-1".

[33] Witness Statement of Dennis Annable, 31 March 2020, Paragraph [4].

[35] Final written submissions of the Respondent, 1 June 2020, Paragraph [4].

[38] [2015] FWC 4355.

[39] [2018] FWCFB 1767.

[40] [2012] FWA 2424.

[41] Final written submissions of the Respondent, 1 June 2020, Paragraph [22].

[45] Applicant's Form F2, 13 January 2020; Final written submissions of the Respondent, 1 June 2020, Paragraph [25].

[46] Final written submissions of the Respondent, 1 June 2020, Paragraph [27].

[49] [2015] FWC 1816.

[50] (1997) 78 IR 78.

[51] (1997) 74 IR 283.

[53] Final written submissions of the Respondent, 1 June 2020, Paragraph [40].

[58] Final written submissions of the Respondent in Reply, 5 June 2020, Paragraph [4].

[59] [2012] FWAFB 6108.

[60] Final written submissions of the Respondent in Reply, 5 June 2020, Paragraph [13].

[63] Witness Statement of Jimmy Seoud, 17 April 2020, Paragraph [6].

[71] Final written submissions of the Applicant in Reply, 5 June 2020, Paragraph [6].

[74] Final written submissions of the Applicant, 1 June 2020, Paragraph [45].

[78] Final written submissions of the Applicant in Reply, 5 June 2020, Paragraph [11].

[79] Final written submissions of the Applicant, 1 June 2020, Paragraph [12].

[84] [2016] FWCFB 5500

[85] [2001] AIRC 163

[87] Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82]; citing Condon v G James Extrusion Company Print N9963 (AIRC, Watson DP, 4 April 1997), [(1997) 74 IR 283 at p. 288]; cited in Slavin v Horizon Holdings Pty Ltd [2012] FWA 2424 (Bissett C, 23 March 2012) at para. 11.

[89] Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998); cited in Chang v Ntscorp Ltd [2010] FWA 1952 (Hamberger SDP, 9 March 2010); see McIlwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 3614 (Cribb C, 30 April 2012) at para. 34.

[91] [2011] FWAFB 975.

[92] [2018] FWCFB 901.

[93] [2010] FWAFB 7251; (2010) 197 IR 403 at [16]- [18].

[94] [2018] FWCFB 901 at [38].

[95] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[96] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[98] [2016] FWCFB 6963 at [41].

[99] See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O'Connor T/A Hair

R Printed by authority of the Commonwealth Government Printer

epublic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.