Fair Work Act 2009

s.604 - Appeal of decisions

Permission to appeal against a decision [ [2018] FWC 2472] of Commissioner Cambridge at Sydney on 10 May 2018 - reinstatement - public interest not enlivened - not contended that the decision involved a significant error of fact - permission to appeal refused.

[1] On 10 May 2018 Commissioner Cambridge issued a decision[1] (the Decision) in which he determined that Ms Madeline Wait had been unfairly dismissed from her employment with the Tenterfield Care Centre Limited ('Tenterfield'). The Commissioner issued an Order[2] that Ms Wait be reinstated to the position she was employed immediately before her dismissal; that her continuity of employment be maintained; and a sum of compensation lost because of the dismissal. Tenterfield seeks permission to appeal the Decision.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[3] The background to the proceedings is described in the Decision and may be shortly stated. Ms Wait is 61 years of age and worked for the Appellant for about 5 and a half years, initially as a kitchen hand and then as a Maintenance/Gardening Officer. Ms Wait was dismissed on 5 October 2017 arising from two allegations of misconduct:[4]

• (i) An allegation of unauthorised use of the appellant's equipment by reason of Ms Wait borrowing a chainsaw and hedge trimmer for personal use on 19 August 2017.

• (ii) An allegation that Ms Wait had refused to follow a lawful and reasonable request in a timely manner and being insubordinate by not clearing up some leaves and debris on 1 September 2017.

[4] The Commissioner sets out the factual background at [7] to [31] before setting out the submissions advanced on behalf of the applicant (at [32] to [42]) and the employer (at [43] to [51]). The Commissioner deals with the first allegation of misconduct ((i) above at [3]) at [57] to [68] finding that:

• the evidence presented 'overwhelmingly' supported the proposition that the applicant had been given verbal approval by her previous manager, Ms Johnston, to 'borrow the hedge trimmer' (see [57] to [60]).

• during the hearing the employer raised a distinction between authorisation for the private use of the hedge trimmer as opposed to any authorisation for the private use of the chainsaw. The Commissioner found that no such distinction arose during the employer's investigation into the allegation and that 'it was clear that the applicant made the assumption that the verbal approval to use the hedge trimmer would be equally applicable to the chainsaw' (at [63]).

• at its highest the applicant's conduct 'might properly attract some reprimand and warning' (at [66]) (emphasis added).

[5] The Commissioner deals with the second allegation of misconduct ((ii) above at [3]) at [69] to [77], noting that the letter of dismissal stated that the applicant was directed 'on three times by two of your supervisors' to clean up leaf debris. The Commissioner found that the factual position as understood by the employer was incorrect (see [70]). The Commissioner found that the applicant had made an 'intemperate remark' to her manager, saying words to the effect of: 'what do you think I am, get real'. But the Commissioner notes that this remark was made in response to an 'unreasonable instruction' to immediately commence the clean up of the leaf debris and to not take her scheduled tea break.

[6] The Commissioner concluded (at [77]) that when properly examined the alleged insubordination could not be sustained:

'The applicant disobeyed an unreasonable and possibly unlawful instruction, and disobedience in such circumstances does not constitute insubordination. However, the applicant should have been reprimanded about her inappropriate verbal comments, and it would have been appropriate to warn her about her general level of undiplomatic or discourteous verbal communication with other employees and managers in particular. Importantly, the actions of the applicant on 1 September 2017 during her verbal exchanges with Ms Ellis, did not represent a refusal to follow lawful and reasonable requests in a timely manner, nor did it represent insubordination.'[5]

[7] In relation to both allegations and the question of whether there was a valid reason for dismissal the Commissioner concludes at ([78]):

**'**In summary therefore, the reasons for the dismissal of the applicant were artificially elevated to represent serious misconduct. Although particular aspects of the applicant's conduct on both 19 August and 1 September 2017 were open to justifiable criticism, there was no valid basis to characterise her conduct as serious misconduct. The purported serious misconduct of the applicant was not a reason that was sound, defensible or well-founded. Therefore, there was not a valid reason for the dismissal of the applicant related to her capacity or conduct.'[6]

[8] The Commissioner deals with the other matters he was required to take into account (s.387(b) to (h)) at [79] to [87] and concludes as follows (at [88], [90] and [91]):

**'**The applicant was dismissed upon findings that the employer made of serious misconduct. Upon proper analysis of the conduct of the applicant in respect to events of 19 August and 1 September 2017, there was no proper basis upon which the employer established serious misconduct. The employer had artificially elevated the seriousness of the transgressions, mistakes and impolite comments made by the applicant in respect to the events of 19 August and 1 September 2017. Consequently, the reasons for the applicant's dismissal were not sound, defensible or well-founded. The applicant was not dismissed for valid reason related to her capacity or conduct.

In summary, this case has involved a very regrettable absence of valid reason for the applicant's dismissal. The employer issued unreasonable instructions to the applicant, and an unfortunate verbal exchange occurred between the applicant and Ms Ellis. As a result of this unfortunate verbal exchange the employer artificially elevated the level of seriousness of the matters under consideration, and it erroneously determined that the applicant was guilty of serious misconduct.

Consequently, the dismissal was without valid reason and it was infected with procedural deficiency. The dismissal of the applicant was harsh, unjust and unreasonable. The applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.'[7]

[9] The Commissioner dealt with the question of remedy at [92] to [97] and determined that an order for reinstatement was appropriate 'in all the circumstances of this case'. The Commissioner issued an Order[8] that Ms Wait be reinstated to the position she was employed immediately before her dismissal; that her continuity of employment be maintained; and a sum of compensation lost because of the dismissal. Tenterfield seeks permission to appeal the Decision.

[10] This appeal is one to which s.400 of the Act applies. Section 400 provides:

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

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

[11] The legislative scheme manifests an intention that the threshold for a grant of permission to appeal be higher in respect of an unfair dismissal appeal than the threshold applicable to appeals generally.[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one'.[10]

[12] The Appellant advanced nine grounds of appeal outlined in the Notice of Appeal. In its submissions filed on 26 June 2018, the Appellant advised it no longer pressed grounds 1 to 7 and only sought permission to appeal in respect of Grounds 8 and 9, both of which relate to the decision to reinstate.[11] Before turning to those grounds we will briefly deal with the relevant legislative provisions and the general principles concerning reinstatement.

[13] Remedies for unfair dismissals are dealt with in Division 4 of Part 3-2 of the Act (ss.390-393). Section 390 is the relevant provision for present purposes, it states:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[14] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is 'inappropriate'. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is 'to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement'.[12] We would observe that to describe reinstatement as the 'primary remedy', is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act.[13] The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been 'unfair' is whether reinstatement is appropriate in the particular case.[14]

[15] The general principles concerning consideration of whether the remedy of reinstatement should be granted were dealt with in the Full Bench decision in Nguyen

v Vietnamese Community in Australia.[15] Relevantly, the Full Bench determined that:

• whether to order a remedy is a discretionary decision;[16]

• reinstatement might be inappropriate in a range of circumstances, including that it would be futile, or the employee was incapacitated by illness or injury, or because of a loss of trust and confidence;[17]

• 'trust and confidence' is that which was necessary to make an employment relationship workable;[18]

• trust and confidence is not the sole or even a necessary criterion for reinstatement;[19]

• in relation to a contention of a loss of trust and confidence, each case had to be decided on its own facts;[20] and

• an allegation of a loss of trust and confidence must be soundly and rationally based.[21]

[16] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the notion, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[17] In Perkins v Grace Worldwide (Aust) Pty Ltd ('Perkins')[22] the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the "practicability" of a reinstatement remedy and said:

'Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.'[23]

[18] Although Perkins was decided in a different statutory context, the Court's observations remain relevant to the question of whether reinstatement is appropriate in the context of s.390.[24]

[19] As mentioned earlier, the Appellant does not challenge the Commissioner's finding that there was no valid reason for dismissal and the dismissal of Ms Wait was harsh, unjust and unreasonable. The only issue now raised on appeal is the decision as to remedy, that is, grounds 8 and 9, which state:

'8. The Commission erred in finding that there has been not been a genuine loss of trust and confidence such that the employment relationship should not be re-established; in making this error the Commissioner wrongly rejected unchallenged evidence directly on point.

1. The Commission erred in finding that the job existed into which the respondent could be reinstated, and unreasonably dismissed the appellant's unchallenged evidence in that regard.'

[20] The question of whether reinstatement is appropriate involves the exercise of a discretion which will invariably be particular to the circumstances of the case. Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be successfully challenged on appeal by showing error in the decision-making process.[25] It is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has .been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'[26]

[21] In the course of oral argument counsel for the Appellant submitted that the Commissioner provided no proper analysis of the evidence and submissions regarding the inappropriateness of reinstatement and erred in failing to provide adequate reasons. The Appellant contended that the Commissioner had made the type of error identified as the final category in House v The King namely that although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. The Appellant contends that the only reasonable conclusion is that the Commissioner ignored relevant material in concluding that there had not been a genuine loss of trust and confidence on the part of the employer.

[22] Part of the Appellant's case is the proposition that Ms Wait had lied to her employer during the investigation into her alleged misconduct. It is said that the Commissioner failed to take this matter into account. This submission proceeds on a false premise. It is based on the proposition that Ms Wait was not authorised to use the chainsaw for private use; knew she was not authorised; and lied about this during the investigation.

[23] The proposition put is inconsistent with the Commissioner's findings at [63]:

'Although a distinction was made during the Hearing between any approval to take the hedge trimmer as opposed to the chainsaw, no such distinction arose during the employer's investigation into the allegations regarding the applicant's unauthorised use of the employer's equipment. Further, it was clear that the applicant made the assumption that the verbal approval to use the hedge trimmer would be equally applicable to the chainsaw. The hedge trimmer and the chainsaw are similar pieces of equipment, both being handheld motorised gardening tools. In my view, it was reasonable and open to the applicant to assume that the verbal approval provided for the hedge trimmer would similarly apply to the chainsaw.'

[24] During the course of oral argument counsel for the Appellant contended that the above finding was erroneous. The grounds of appeal contain no allegation that the Commissioner made a significant error of fact or that he erred in finding that 'it was reasonable and open to the applicant to assume that the verbal approval provided for the hedge trimmer would similarly apply to the chainsaw'. Counsel belatedly sought to amend the grounds of appeal to contend that the Commissioner made a significant error of fact at [63] of the Decision. The application to amend the grounds of appeal was opposed.[27]

[25] The Appellant has had the benefit of legal advice in drafting the grounds of appeal and in preparing the written submissions filed in support of the appeal. Further, any amendments to those grounds would lead to the Respondent incurring additional costs and delay to the resolution of the matter. In our view the interests of justice did not favour the grant of leave and on that basis leave was refused.

[26] As to the proposition that the Commissioner failed to provide adequate reasons we note that in Barach v University of New South Wales[28] the Full Bench noted that a decision should articulate the essential grounds for reaching a decision, but that (at [16]):[29]

'... the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.'

[27] As noted in Barach, a decision-maker is 'not required to mention every fact or argument relied on by the losing party'[30] or expose every step of his or her chain of reasoning, nor is it necessary for reasons to be elaborate or lengthy.[31] Whether reasons are adequate depends upon the circumstances, including the nature of the statutory function being exercised, the decision and the submissions and material in the case.[32] In the context of this case we are not persuaded that the reason were inadequate. At first instance the submissions of the respondent in relation to reinstatement were brief. In each of its written submissions, the respondent devoted a single paragraph to the question of reinstatement[33] and, in oral submissions, counsel only briefly addressed the issue.

[28] As we have mentioned, the Commissioner dealt with the question of remedy at [92] to [97] of the Decision. At [94] to [96] the Commissioner states:

**'**I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant. I do not accept that there has been a genuine loss of trust and confidence such that the employment relationship should not be re-established. Further, I have not been persuaded that the rearrangement of the work previously performed by the applicant now being undertaken by a casual employee, establishes any barrier to reinstatement, or would otherwise make reinstatement inappropriate.

In the particular circumstances of this case, I have formed the view that a significant injustice would occur if the applicant was not provided with the remedy that she has earnestly sought. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.

Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant.'

[29] Further, the Decision is be read fairly and as a whole and not with an eye attuned to detect error. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291:[34]

'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.'

[30] The passages which expressly deal with reinstatement ([94] to [96]), set out above) must be read in the context of the Decision as a whole. In particular, at [49] to [50] the Commissioner summarised Tenterfield's submissions regarding reinstatement:

**'**Ms Lowson made further submissions which stressed that the applicant's insubordination reflected an attitude which meant that the employer had lost trust and faith in the applicant and the employment relationship had been irrevocably damaged. In this regard, Ms Lowson submitted that the employment relationship had been damaged and therefore any reinstatement of that relationship would be inappropriate.

Ms Lowson stressed that the employer primarily relied upon its submission that the dismissal of the applicant was not unfair. However, by way of alternative further submissions, Ms Lowson strongly opposed any remedy of reinstatement. Ms Lowson said that the employment relationship had been severely damaged by the insubordinate conduct of the applicant, and that she had been shown to be dishonest in her answers during the investigation process. Further, Ms Lowson said that the work of the applicant previously undertook had now been allocated to a casual employee and so therefore the job that the applicant previously did no longer existed.'

[31] The Appellant's submissions below made plain that it suggested reinstatement was inappropriate as a result of an alleged breakdown of trust and confidence which was said to arise substantially from the same matters alleged to provide the valid reason for termination. The essential assertion was that Ms Wait was insubordinate, rude and difficult to work with, which overlapped with the matters relied upon to dismiss Ms Wait in the first place. [35] In addition, it was alleged that Ms Wait's work was now being done by a casual employee in a lesser period of time.[36]

[32] The Commissioner addressed these submissions in the Decision and there is no basis for concluding that the Commissioner failed to consider the question of whether or not trust and confidence had broken down so as to cause reinstatement to be inappropriate or ignored or overlooked the material relied upon by the Appellant.

[33] The Commissioner was not required to set out each and every matter raised by the Appellant in his reasons, particularly where the substance of the issue raised by the Appellant as to trust and confidence were considered by the Commissioner earlier in the decision. The Commissioner also directly addressed (at [94]) the question of whether the rearrangement of the work performed by Ms Wait established a barrier to reinstatement or otherwise made reinstatement inappropriate.

[34] We are also cognisant of the fact that the Commissioner had the advantage of seeing the witnesses give evidence, including Ms Wait, Ms Murphy and Ms Ellis. The only witness who expressly gave evidence in relation to reinstatement was Ms Murphy and she was challenged on her evidence.[37]

[35] As mentioned earlier, in the case of an appeal from a decision made under Part 3-2 of the Act, s 400(1) dictates that we must not grant permission to appeal 'unless' we consider that it is in the public interest to do so. While the 'public interest' criterion involves the making of a broad value judgement, the test imposed by s.400(1) is intended to be a 'stringent one'.[38] The Full Bench 'must not' grant permission to appeal 'unless' satisfied that it is in the public interest to do so.[39]

[36] Factors that might attract the public interest include where a matter raises issues of importance and general application, where there are a diversity of decisions at first instance, where the decision at first instance manifests an injustice or the legal principles applied appear disharmonious when compared with other recent decisions.[40] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[41]

[37] In our view, the appeal raises no issue or question of principle, of broader importance or with implications beyond the present case. The principles to be applied by the Commission in determining the question of remedy under s.390 are well established and were not in dispute in the present appeal.

[38] The public interest is not enlivened in a case where the only issue raised is remedy; no issue of principle arises; it is not contended that the decision involved a significant error of fact and the decision subject to appeal turns on the particular facts of the case. Such other circumstances in the matter before us. We do not consider that it is in the public interest to grant permission to appeal.

[39] Permission to appeal is refused.

[1] [2018] FWC 2472.

[2] PR606775.

[3] This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[5] [2018] FWC 2472 at [77].

[8] PR606775.

[9] G & S Fortunato Group Pty Ltd v Stranieri (2013) 233 IR 304 at [13]; Barwon Health - Geelong Hospital v Colson (2013) 233 IR 364 at [6]; Becke v Edenvale Manor Aged Care [2014] FWCFB 6809 at [11].

[10] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[12] Section 381(1)(c) Fair Work Act 2009 (Cth).

[13] Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008] AIRCFB64; Colson v Barwon Health [2014] FWCFB 1949.

[14] Regional Express Holdings Limited trading as REX Airlines v Richards [2010] FWAFB 8753 at [23]- [24]; Colson v Barwon Health [2014] FWCFB 1949 at [30]- [31].

[15] [2014] FWCFB 7198.

[22] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.

[24] McLauchlan (1998) 84 IR 1 at 18. Also see IGA Distribution (Vic) Pty Ltd v Cong Nguyen [2011] FWAFB 4070; Colson v Barwon Health [2014] FWCFB 1949.

[25] Coal & Allied v Australian Industrial Relations Commission (2000) CLR 194 at [21].

[26] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

[27] See Transcript at [129] to [153].

[28] [2010] FWAFB 3307; (2010) 194 IR 259.

[29] See also Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21 at [84]; Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd (2014) 261 IR 194 at [30]-[31].

[30] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [62]; Kovan Enginerring (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117; (2006) 234 ALR 241 at [45].

[31] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.

[32] Transport Workers' Union of Australia v WA Freightlines Pty Ltd (2011) 211 IR 369 at [10].

[33] Appeal Book Tab 18 p377-378 at [20]; Tab 19 p390 at [27].

[34] See also Technical and Further Education Commission (t/as TAFE NSW) v Pykett [2014] FWCFB 714; (2014) 240 IR 130 at [45]; Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; (2015) 247 IR 5 at [25].

[35] The respondent's written submissions handed up on the final day of hearing asserted that reinstatement would not be an appropriate remedy "relying on the same matters set out above, as well as unchallenged evidence from Ms Ellis and other staff concerning the difficulties in working with Ms Wait": Appeal Book Tab 19 p390 at [27].

[36] Appeal Book Tab 18 p378 at [20a].

[37] Appeal Book Tab 3 p107-109 PN1114-1146.

[38] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[39] See, for example, Pilbara Iron Company (Services) Pty Ltd t/a Rio Tinto Iron Ore v Ballam [2018] FWCFB 1747 at [94].

[40] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]; Construction, Forestry, Mining and Energy Union (Construction and General Division) v Port Kembla Coal Terminal Ltd (2015) 251 IR 241 at [28].

[41] Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089; (2010) 202 IR 388 at [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v McAuliffe [2014] FWCFB 1663; (2014) 241 IR 177 at [28].

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