Arlene Wright v Navy Club Incorporated

[2021] FWC 2976

[2021] FWC 2976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Arlene Wright
v
Navy Club Incorporated
(C2020/7909)

DEPUTY PRESIDENT YOUNG MELBOURNE, 24 MAY 2021

Application to deal with contraventions involving dismissal – no dismissal – application dismissed.

[1] This decision concerns an application by Ms Arlene Wright under section 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed in contravention of the general protections contained in Part 3-1 of the Act.

[2] The Respondent objects to the application on the basis that:

(a) Ms Wright was not dismissed; and

(b) the application was not filed within 21 days after the dismissal took effect as is required by section 366(1) of the Act.

[3] On 14 January 2021 I issued directions for the parties to file materials, with revised directions issued on 10 February 2021. Materials were filed by Ms Wright on 8, 10, 17 and 25 February 2021 and by the Respondent on 5 March 2021.

[4] On 15 March 2021 I conducted the proceeding by way of determinative conference via Microsoft teams. At the determinative conference Ms Wright appeared on her own behalf. Ms Wright also called Mr Jeffery Ramage as a witness. In addition, Ms Wright filed a witness statement for Ms Dianne Russell, however Ms Russell did not attend the determinative conference. Accordingly, I have not had regard to her evidence. Ms Kate Sloss, appeared on behalf of the Respondent and also called Ms Kylie Powley as a witness. In addition to Ms Powley, the Respondent also filed witness statements for Ms Donna-Lee Game, Mr John Silva and Mr Jason Murtagh, however, Ms Sloss confirmed at the commencement of the determinative conference that the Respondent no longer sought to rely upon the evidence of those witnesses. Accordingly, they were not called and I have not had regard to their evidence.

Section 365 and section 386 of the Act

[5] Section 365 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (Commission) for the Commission to deal with the dispute.

[6] Section 386 of the Act provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative 1 or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.2

[7] The Respondent contends that Ms Wright’s employment was not terminated at its initiative, rather her employment ended by way of resignation. The Respondent submits that Ms Wright was therefore not dismissed within the meaning of section 368 of the Act 3 and as such, the Commission does not have jurisdiction to deal with the dispute.4 Ms Wright concedes that she resigned from her employment with the Respondent5 but contends that she was forced to do so because of conduct of the Respondent.6

Section 366 of the Act

[8] Section 366 of the Act provides that an application under section 365 of the Act must be made within 21 days after the dismissal took effect or such further time as the Commission allows under section 366(2) of the Act. Section 366(2) of the Act provides that a further period for the lodging of an application under section 365 of the Act may be allowed if there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

Initial observations

[9] I first make some initial observations regarding the witnesses and the manner in which the parties conducted themselves at the determinative conference. It is clear that this matter, the events which have occurred following the cessation of Ms Wright’s employment and the asserted sexual relationship between Ms Wright’s husband and another employee of the Respondent, has caused considerable distress to both Ms Wright and Ms Sloss and that the relationship between them is significantly strained. Despite multiple requests to conduct themselves more appropriately both Ms Wright and Ms Sloss were discourteous and rude and were inappropriately combative both while giving their evidence and in cross examination. Ms Wright, in particular, had considerable difficulty in containing her emotions, sought to speak over Ms Sloss, interrupted Ms Sloss’ evidence to dispute it while that evidence was still being given, struggled to lead relevant evidence and to contain her evidence to the matters in issue and often engaged in gratuitous, unhelpful commentary. As a consequence of these matters, the conduct of the determinative conference was most unsatisfactory and much of the evidence led did not assist the Commission. Further, although I found the conduct of both Ms Wright and Ms Sloss highly unsatisfactory, Ms Sloss’ evidence was the more measured, rational and considered. I consider it more reliable than that of Ms Wright. For those reasons, where there is a contest between the evidence of Ms Sloss and Ms Wright I generally prefer the evidence of Ms Sloss.

Background and Factual Findings

Ms Wright’s Employment

[10] Ms Wright was employed by the Respondent on a casual basis from February 2017. Ms Wright concedes that she resigned from her employment with the Respondent 7 but says that she was forced to do so because of the Respondent’s conduct.8

[11] Ms Sloss is the Secretary, Treasurer and currently the Acting Manager of the Respondent. Ms Sloss’ evidence was that under the previous Manager the Respondent had been very poorly run and the Manager’s conduct was under investigation. Consequently, the Manager left on 6 February 2020 and Ms Sloss stepped in to take on the role of Acting Manager in a volunteer capacity in addition to her role of Secretary, Treasurer. 9

[12] On 2 September 2020 Ms Sloss sent a text message to Ms Wright saying “Hi Arlene – thanks for your efforts today. Sorry I had to rush off – had to go see my Nana in hospital. Are you able to work tomorrow night.” 10 Ms Wright replied via text to Ms Sloss saying “Sorry due to health reasons I won’t be returning to Club”11 (Resignation Text). It is not contested that this constituted a resignation by Ms Wright from her employment with the Respondent. Ms Sloss produced a screenshot of the Resignation Text which is dated 3 September 2020 at 17:12.12 Ms Wright’s evidence was that she did not believe that she sent the Resignation Text on 3 September 2020, rather she thought she sent it on 10 September 2020.13 However, her further evidence was that she could be confused as to the date of the Resignation Text14 and that she wasn’t sure of the date of the Resignation Text.15 Accordingly, I find that the Resignation Text was sent by Ms Wright on 3 September 2020. Ms Wright did not perform any duties after 2 September 2020 but was paid JobKeeper until 27 September 2020.16 It is not contested, and I find, that Ms Wright’s employment with the Respondent ended on 27 September 2020.17

Alleged Forced Resignation

[13] As I understand it, Ms Wright says that she was forced to resign from employment with the Respondent because of the following conduct of the Respondent:

•  Ms Wright was demoted from her role of Bar Manager following return to work after the lockdown; 18

•  to the Respondent’s knowledge Ms Wright’s husband, Mr Ramage, was in a sexual relationship with Ms Powley, of which the Respondent did not inform Ms Wright. 19 Mr Ramage had previously been employed by the Respondent and Ms Powley is currently still employed by the Respondent;

•  Ms Wright’s name as an Approved Manager was removed from above the door at the Respondent’s premises (Venue); 20

•  Ms Wright was excluded from a staff dinner; 21 and

•  Ms Sloss removed Ms Wright’s keys to the Venue and they were not returned. 22

[14] In her application Ms Wright also says that she was victimised by Ms Powley, her superannuation entitlements were not paid, shifts were swapped, she was treated badly and has suffered emotional stress and Post Traumatic Stress Disorder. The application also makes reference to “information misleading”. 23 Ms Wright’s further material makes reference to sexual harassment, victimisation and disability discrimination based on Ms Wright’s asserted Attention Deficit Hyperactivity Disorder (ADHD)24 (collectively, Other Matters).

Demotion

[15] Ms Wright says that upon her return to work in July 2020 following the lifting of the lockdown in Western Australia she was demoted from Bar Manager 25 to working in the kitchen.26

[16] Ms Sloss’ evidence is that prior to the lockdown Ms Wright was engaged to undertake general bar and kitchen duties under Level 2 of the Registered and Licensed Clubs Awards 2020 (Award). Ms Wright was not engaged pursuant to written contract of employment. 27 Her evidence was that Ms Wright would regularly work in the kitchen on Sundays and would work as Bar Manager on occasion, possibly a couple of times per month.28 It appears uncontested that Ms Wright was an Approved Manager for the Venue, along with Ms Powley, Ms Akavi and, for at least a period of time, Mr Murtagh, and that she was listed above the door of the Venue as such. I address the removal of Ms Wright’s name as Approved Manager from above the Venue door later in this decision. Ms Sloss’ evidence is that an Approved Manager is required to be present at the Venue or on-call.29 Ms Sloss says that there was an incident on 14 March 2020 just prior to lockdown involving Ms Wright, which is in part contested by Ms Wright, following which she did not offer Ms Wright further shifts in the bar as Approved Manager.30 Ms Sloss says that after the lockdown was lifted Ms Wright would work in the kitchen on Friday nights31 and shifts in the bar when other staff were also working in the bar.32 Ms Wright’s evidence was initially that she did not undertake any kitchen work prior to the chef, Gareth, leaving the Respondent’s employment in February 2020.33 She then said that she would undertake kitchen duties when Gareth wasn’t there.34 Ultimately, however, in response to questioning from the bench Ms Wright agreed that she worked in the kitchen prior to February 2020,35 although she said that she was just “helping out”36 and “that wasn’t my job. I’m not a cook.”37

[17] For the following reasons I find that Ms Wright’s employment with the Respondent required her to undertake kitchen duties as well as bar duties and that she was not employed solely in the position of Bar Manager. I therefore reject the contention that Ms Wright was demoted by working in the kitchen upon her return to work in July 2020. Firstly, Ms Wright’s evidence on this matter was contradictory and inconsistent. I consider it unreliable and prefer the evidence of Ms Sloss. Secondly, Ms Sloss’ evidence is supported by the Respondent’s weekly rosters for the period 2 December 2019 to 16 February 2020 and the timesheet and payroll records which are in evidence. 38 The weekly rosters demonstrate that Ms Wright was rostered to work in the kitchen on a Sunday on a reasonably regular basis during the period to which the rosters relate, and including at times when Gareth was included on the roster. They demonstrate that Ms Wright was also concurrently rostered to work bar duty shifts during this period. Accordingly, the rosters demonstrate that Ms Wright undertook both bar duties and kitchen duties as part of her employment with the Respondent prior to the lockdown, prior to Gareth leaving the Respondent’s employment and also prior to Ms Sloss taking over the role of Acting Manager of the Respondent. On the basis of the evidence before me I consider that Ms Wright was therefore employed to undertake both bar and kitchen duties as part of her employment with the Respondent and that she was not just “helping out” in the kitchen when Gareth wasn’t there. Further, Ms Wright continued to perform both kitchen duties and bar duties following her return to work after lockdown. Finally, the payroll records in evidence before the Commission demonstrate that Ms Wright was at all times employed as Level 2 under the Award and was paid the same rate irrespective of whether she was working in the bar or in the kitchen.

[18] Accordingly, I find that Ms Wright was not demoted by the Respondent following her return to work in July 2020 by being rostered to work in the kitchen. Further, I find that Ms Wright undertook these duties while also being rostered to undertake bar duties.

Relationship between Mr Ramage and Ms Powley

[19] Mr Ramage gave evidence that he was in a sexual relationship with Ms Powley. 39 I infer from the material before the Commission that this is said to have occurred whilst Mr Ramage was employed by the Respondent. Ms Powley gave no evidence regarding the asserted relationship between her and Mr Ramage. Ms Wright’s evidence was that Ms Sloss knew of the relationship between Mr Ramage and Ms Powley and “approved of it”. Ms Wright’s further evidence was that Ms Sloss had “not given me any information [as to the relationship between Ms Powley and Mr Ramage] that I deserve as a staff member”.40 Ms Sloss’ evidence was that she had no knowledge of a relationship between Mr Ramage and Ms Powley, she does not believe that any such relationship existed41 and that the asserted relationship between Mr Ramage and Ms Powley is “fictitious”, “completely false”, “ludicrous” and a “fabrication” of Ms Wright’s.42 Under cross examination Mr Ramage agreed that he had not discussed his relationship with Ms Powley with Ms Sloss.43

[20] In the present circumstances I do not consider it necessary that I determine whether Mr Ramage was, in fact, in a sexual relationship with Ms Powley. Firstly, I accept Ms Sloss’ evidence that she does not believe that such a relationship occurred between Mr Ramage and Ms Powley and Mr Ramage conceded that he had not discussed the asserted relationship with her. Accordingly, she cannot be said to have known of it or approved of it. Secondly, even if Ms Sloss did know of Mr Ramage’s relationship with Ms Powley, I reject the contention that Ms Wright “deserved” to be provided with this information “as a staff member”. Had Ms Sloss known of the asserted relationship between Mr Ramage and Ms Powley I do not consider that she was under any legal obligation arising from Ms Wright’s employment relationship with the Respondent to disclose that relationship to Ms Wright, nor did Ms Wright identify the source of any such obligation. Further, should Ms Wright’s material be taken to suggest that an employer’s duty of care in the circumstances under consideration requires the disclosure to an employee of the private sexual activities of another employee, I reject that suggestion.

Removal of name

[21] Ms Wright says that her name as an Approved Manager was removed from above the Venue door when she returned to work in July 2020 after the lockdown. 44 The Respondent says that Ms Wright’s name was removed from the names of Approved Managers listed above the Venue door on 27 September 2020 when Ms Wright’s employment ended.45 Ms Sloss’ evidence at the determinative conference was consistent with this.46 For the reasons set out earlier, I prefer the evidence of Ms Sloss as to this matter. I therefore find that Ms Wright’s name as Approved Manager was removed from above the Venue door following the cessation of her employment on 27 September 2020 and not in July 2020.

Exclusion from the staff dinner

[22] Ms Wright’s evidence was that there was a staff dinner in early July 2020 (Dinner) and that she was not invited. 47 Ms Wright asserts that she was “left out” and that all other staff members attended the Dinner except for her.48 Under cross examination Ms Sloss’ evidence was that on the announcement of the lockdown due to the COVID-19 pandemic in March 2020 considerable work was required to close the Venue and leave it in a safe condition, including emptying out the fridges, putting all stock into the cool room, flushing out the lines, cleaning the Venue and finalising the banking. At that time all employees were stood down, including Ms Wright,49 and the work required to shut down the Venue was undertaken on a volunteer basis by employees, members and committee members of the Respondent.50 Ms Wright did not assist in the volunteer work undertaken to shut the Venue down.51 Ms Sloss’ evidence was that the Dinner was held to thank all of those who volunteered their time to shut the Venue down and as Ms Wright had not volunteered she was not invited to the Dinner. In response to a question as to why “everyone else” was asked to assist in the shut down work other than Ms Wright,52 Ms Sloss’ evidence was that not all of those who assisted in the shut down work were asked to do so; rather people volunteered to assist.53 I accept Ms Sloss’ evidence as to these matters.

[23] Accordingly, I find that the Dinner was to thank those who volunteered their time to shut down the Venue, following the lockdown being announced in March 2020. I find that Ms Wright did not volunteer to assist with the shut down work and did not assist in that work. I find that it was for this reason that Ms Wright was not invited to the Dinner.

Removal of keys to the Venue

[24] Ms Wright’s evidence is that at the time of the commencement of the lockdown Ms Sloss asked Ms Wright for her keys to the Venue to be returned. 54 She says that Ms Sloss told her that the keys would be returned after lockdown,55 however, they were not and were instead given to another employee, Mr Murtagh.56 Ms Sloss’ evidence is that she required the return of the keys from all employees at the commencement of the lockdown.57 Her further evidence was that Ms Wright’s keys were not given to Mr Murtagh and have been locked in the Venue’s safe since their return in March 2020.58 She says that following return to work in July 2020 Ms Wright was not working shifts that required her to have keys to the Venue.59

[25] It is therefore uncontested that Ms Sloss did require Ms Wright to return of the Venue’s keys at the commencement of lockdown. For my part, I find nothing unusual in this. It was time of considerable uncertainty and employers did not know how long the lockdown would continue or when they would be able to resume business. In that context, requiring Ms Wright (and others) to return the Venue’s keys to the employer seems not only unremarkable but also prudent. As to the keys not being returned to Ms Wright and their asserted provision to Mr Murtagh, I accept the evidence of Ms Sloss as to these matters. Firstly, it is consistent with Ms Sloss not rostering Ms Wright to undertaking duties as Approved Manager after the incident on 14 March 2020. Secondly, for the reasons set out earlier, I generally prefer the evidence of Ms Sloss over that of Ms Wright. Accordingly, I find that Ms Sloss requested the return by Ms Wright of the keys to the Venue due to the lockdown. I further find that those keys were not subsequently provided to Mr Murtagh.

Other Matters

[26] As to the Other Matters, whilst various assertions and allegations were made by Ms Wright, for the large part they rose no higher than generalised, unparticularised allegations, which were also largely unsupported by any probative evidence. In particular no probative evidence of Ms Wright’s asserted ADHD was led. Accordingly, I find that on the basis of the material currently before the Commission none of the Other Matters, other than in relation to payment of Ms Wright’s superannuation entitlements, give rise to any relevant matter going to whether Ms Wright was forced to resign. As to the superannuation entitlements, Ms Sloss conceded that Ms Wright’s superannuation entitlements had not been paid under the previous management. 60 Although there was no evidence before the Commission as to the period of non payment, Ms Sloss’ evidence was that she was aware of this and she was “fixing the errors of past management”61 and that in that context she had sought Ms Wright’s superannuation details over an extended period of time.62 Ms Wright ultimately conceded this and her evidence was that she did not supply the relevant details to Ms Sloss in relation to her superannuation until 2 August 2020.63 There was no evidence before the Commission as to whether at the time of the determinative conference the non-payment had been remedied. Accordingly, I find that under the Respondent’s previous management Ms Wright’s superannuation entitlements were not paid (although the period of non-payment is not able to be ascertained on the evidence currently before the Commission) and that following taking on the role of Acting Manager Ms Sloss sought to remedy this, however, Ms Wright did not supply the necessary requested superannuation details to Ms Sloss until 2 August 2020 in order for this to occur.

Consideration

Was Ms Wright forced to resign because of the conduct of the Respondent?

[27] A forced resignation is when an employee has no real choice but to resign. 64 The onus is on the employee to prove that they did not resign voluntarily.65 The employee must prove that the employer forced their resignation.66 The employer must take action with the intent to bring the relationship to an end or that has that probable result.67 The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one.68 The line, however, must be “closely drawn and rigorously observed.”69

[28] I have found that:

•  Ms Wright was not demoted by the Respondent following her return to work in July 2020 by being rostered to undertake kitchen duties;

•  Ms Sloss cannot be said to have known of or approved of Mr Ramage’s asserted relationship with Ms Powley. Further, even if Ms Sloss did know of Mr Ramage’s asserted relationship with Ms Powley, Ms Sloss was not under any legal obligation arising from Ms Wright’s employment relationship with the Respondent to disclose that relationship to Ms Wright;

•  Ms Wright’s name as Approved Manager was removed from above the Venue door following the cessation of Ms Wright’s employment on 27 September 2020 and not in July 2020;

•  the Dinner was to thank those who volunteered their time to shut down the Venue, following the lockdown in Western Australia being announced in March 2020. Ms Wright did not volunteer to assist with the shut down work and did not assist in that work and for that reason was not invited to attend the Dinner;

•  Ms Sloss requested the return by Ms Wright of the keys to the Venue due to the lockdown and those keys were not subsequently provided to Mr Murtagh. Further they were not required for the performance of Ms Wright’s duties;

•  other than in relation to payment of Ms Wright’s superannuation entitlements, on the basis of the material currently before the Commission none of the Other Matters give rise to any relevant matter going to whether Ms Wright was forced to resign; and

•  Ms Wright’s superannuation entitlements were not paid under the Respondent’s previous management. Following Ms Sloss becoming Acting Manager she sought to remedy this, however, Ms Wright did not provide the necessary superannuation details to Ms Sloss until 2 August 2020 to enable this to occur.

[29] Accordingly, I have found, with two exceptions, that the specific conduct of the Respondent relied upon by Ms Wright to support her contention that she was forced to resign, either did not occur or does not give rise to any presently relevant matter. As to the two exceptions, firstly, I do not consider that the conduct of the Respondent in requiring the return of the Venue keys due to the lockdown could properly be characterised as conduct that left Ms Wright with no real choice but to resign. There was a proper basis for the request and Ms Wright did not require the keys in order to perform her duties. Further, it clearly did not leave Ms Wright with no real choice but to resign as she continued her employed with the Respondent for a further six months following the return of the keys, including returning to perform duties from July 2020 until September 2020 following the lifting of the lockdown. As to the failure to make superannuation payments, I accept that in certain circumstances the failure to pay an employee’s superannuation entitlements may be conduct that could properly be characterised as conduct of the employer that left the employee with no real choice but to resign. I consider that such conduct may, potentially, be considered to be action taken by the employer which was intended to bring the relationship to an end or that had that probable result. However, in the present circumstances, I reject the contention that the failure to pay Ms Wright’s superannuation entitlements left her with no real choice but to resign. Firstly, Ms Sloss became aware of the failure to make payment following taking on the role of Acting Manager and has been seeking to remedy it. Secondly, Ms Wright was aware that Ms Sloss had ascertained that superannuation entitlements had not been paid and that Ms Sloss was seeking to remedy that non-payment. Thirdly, I infer from the above that Ms Wright has known for some time, possibly as long as approximately eight months (being the period from when Ms Sloss took over the role of Acting Manager until Ms Wright’s cessation of employment) that the Respondent had failed to pay her superannuation entitlements. However, Ms Wright remained employed for that period and did not resign until September 2020. In those circumstances it is difficult to see how it could be said that Ms Wight had no real choice but to resign. Fourthly, Ms Wright failed to supply her superannuation details to Ms Sloss to enable the non-payment to be remedied until 2 August 2020, despite repeated requests to supply that information. Accordingly, in the present circumstances, I find that the failure to pay Ms Wright’s superannuation entitlements was not action taken by the employer which was intended to bring the relationship to an end or that had that probable result. I therefore find it was not conduct that left Ms Wright with no real choice but to resign.

[30] Finally, I note that these findings are consistent with the Resignation Text. The Resignation Text states that Ms Wright is not returning to work “due to health reasons”. It does not provide that Ms Wright considers that she is forced to resign because of conduct of the Respondent, nor does it identify any of the matters that Ms Wright now seeks to rely upon to support her contention that she was forced to resign.

[31] I therefore find that Ms Wright voluntarily resigned from her employment with the Respondent and that she was not forced to do so because of conduct, or a course of conduct, of the Respondent.

Conclusion

[32] Accordingly, I find that Ms Wright was not dismissed within the meaning of 386 of the Act. I find that she is therefore not a person who has been dismissed for the purposes of section 365 of the Act. Consequently, the Commission does not have jurisdiction to deal with the application and it must be dismissed. 70

[33] Given the above, it is not necessary that I consider whether there are exceptional circumstances such that Ms Wright ought be granted an extension of time pursuant to section 366(2) of the Act for the lodgement of the application.

[34] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

A Wright on her own behalf.

K Sloss for the Respondent.

Hearing details:

2021.
Melbourne.
15 March 2021.

Final written submissions:

Applicant: 25 February 2021

Respondent: 5 March 2021

Printed by authority of the Commonwealth Government Printer

<PR730121>

 1   Fair Work Act 2009 (Cth) s 386(1)(a)

 2   Ibid s 386(1)(b)

 3   Exhibit R3 at [6] and [21]

 4   Exhibit R3 at [22]; see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152

 5   Transcript PN 61

 6   Transcript PN 62-63; Form F2, q.1.2

 7   Transcript PN 61

 8   Transcript PN 62-63; Form F2, q.1.2

 9   Transcript PN 1306

 10   Witness Statement of Kate Sloss

 11   Ibid

 12   Ibid

 13   Transcript PN 65

 14   Transcript PN 138, PN 150

 15   Transcript PN 152

 16   Transcript PN 933

 17   Transcript PN 157-164

 18   Transcript PN 174-184

 19   Transcript PN 208

 20   Transcript PN 184, PN 194

 21   Transcript PN 216

 22   Transcript PN 184, PN 198, PN 200

 23   Form F2 at q.31.

 24   Applicant’s Outline of Submissions, q.1.h

 25   Transcript PN 180

 26   Transcript PN 182, PN 184

 27   Transcript PN 1345

 28   Transcript PN 1264, PN 1266

 29   Transcript PN 1272

 30   Transcript PN 1354-1355, PN 1229

 31   Transcript PN 1270

 32   Transcript PN 1229

 33   Transcript PN 1287

 34   Transcript PN 1300

 35   Transcript PN 1287-1304

 36   Transcript PN 1296

 37   Transcript PN 1304

 38   Evidence filed by Kate Sloss on 17 March 2021

 39   Witness Statement of Jeffrey Ramage, pg.1; CB, pg.33; Transcript PN 854-856

 40   Transcript PN 913

 41   Transcript PN 1153

 42   Form F3, q.2.2, q.5.1(b)

 43   Transcript PN 857

 44   Transcript PN 193-196

 45   Form F3, q.5.1(d), Transcript PN 1231, PN 1239

 46   Transcript PN 250-253

 47   Transcript PN 216

 48   Transcript PN 1015

 49   Transcript PN 1014

 50   Transcript PN 1009

 51   Transcript PN 1009, PN 1014

 52   Transcript PN 1020

 53   Transcript PN 1021

 54   Transcript PN 198

 55   Ibid

 56   Transcript PN 200

 57   Transcript PN 1210

 58   Transcript PN 1212

 59   Ibid

 60   Transcript PN 624

 61   Ibid

 62   Transcript PN 562-630

 63   Transcript PN 630

 64   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 206]

 65   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30, [(2009) 185 IR 359]

 66   Ibid

 67   O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para .23, [(2006) 58 AILR 100]

 68   Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996)

 69   Ibid

 70   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152