Cigarette & Gift Warehouse (Franchising) Pty Ltd t/a Freechoice Bentleigh v Kim Evans
[2015] FWCFB 4030
•16 JULY 2015
| [2015] FWCFB 4030 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Kim Evans
(C2015/3874)
VICE PRESIDENT HATCHER | SYDNEY, 16 JULY 2015 |
Permission to appeal sought against decision [[2015] FWC 2276] of Commissioner Bissett at Melbourne on 17 April 2015 in matter number U2014/14497.
[1] Cigarette & Gift Warehouse (Franchising) Pty Ltd t/a Freechoice Bentleigh (CGW /the Appellant) has applied for permission to appeal a decision of Commissioner Bissett issued on 17 April 2015 1 (Decision). The Decision concerned an application by Ms Kim Evans (the Respondent) for an unfair dismissal remedy in respect of her dismissal by CGW on 8 October 2014 for performance related reasons. On 11 May 2015 a Stay Order2 was issued by consent.
[2] By way of background, Ms Evans commenced employment with CGW on 24 September 2012 as the Manager of its Bentleigh store in Victoria. On 16 July 2013 Ms Evans was given a first written warning as a result of a failure to check a number of manufacturer’s stock deliveries in the previous month. In July 2014 Ms Evans incorrectly invoiced a major client by an amount of around $63,000, while in August 2014 an order for the same client was not properly completed/verified. As a result, on 24 September 2014 Ms Evans received a second written warning. In early October 2014 there was a further mix up in a cigarette order for the same client. This prompted a meeting on 8 October 2014 involving Ms Evans and CGW’s National Inventory and Victorian/South Australian State Managers. Ms Evans received an email terminating her employment shortly after that meeting concluded. Following her termination, Ms Evans was looking on the internet jobs site ‘Seek’ when she saw two advertisements for her former position – one dated 8 October 2014 and the other dated 30 September 2014 which was eight days before her dismissal.
[3] In the Decision the Commissioner determined that Ms Evans’ dismissal was harsh and unjust because the decision to terminate her employment “did not provide a valid reason [f]or the termination of her employment and was disproportionate to the performance issues raised.” 3 The Commissioner then went on to determine that reinstatement was not appropriate and ordered that CGW pay Ms Evans an amount of $24,098.88 plus 9.5 per cent superannuation in compensation. In calculating the amount Ms Evans would have earned had she remained employed by CGW, the Commissioner included the $100 per week car allowance which was paid to Ms Evans.
[4] The issue of whether or not permission to appeal should be granted was heard by the Fair Work Commission (the Commission) on 18 June 2015. At that hearing Ms Suzie Ozioko appeared on behalf of CGW, while Ms Jessie Taylor of Counsel appeared with permission for the Respondent.
The Relevant Statutory Provisions and the Code
[5] The relevant provisions of the Fair Work Act 2009 (the Act), ss.385, 390 and 392, are set out below.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
Division 4—Remedies for unfair dismissal
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.
…
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
The Grounds of Appeal and Views of the Parties
[6] CGW in its Notice of Appeal cited the following seven grounds for appeal:
(1) the Commissioner precluded CGW from entering evidence on the issue of the ‘Seek’ job advertisements;
(2) Ms Evans was given three fair warnings, with her attitude to the errors complacent;
(3) Ms Evans would have resigned from CGW in January 2015 following the death of her mother;
(4) the Commissioner’s decision to grant Ms Evans permission to be legally represented;
(5) the amount of compensation ordered was more than a period of six months’ pay and included a car allowance which was in lieu of Ms Evans tool of trade;
(6) the details of Ms Evans’ attempts to find alternative employment were not made available to CGW; and
(7) the Decision is controversial in terms of the messages it sends to business and their ability to run their business accordingly.
[7] As to the reasons as to why it was in the public interest for permission to appeal to be granted, CGW submitted that:
(1) the decision contains significant errors of fact;
(2) the amount of compensation ordered was more than a period of six months’ pay and included a car allowance which was in lieu of Ms Evans tool of trade; and
(3) the details of Ms Evans’ attempts to find alternative employment were not made available to CGW.
[8] What can be seen from the above is that there is a degree of overlap between the grounds of appeal and the public interest considerations relied upon by CGW.
[9] In short, the Respondent submitted that a number of the grounds of appeal relied upon by CGW reflected its preference for an alternative outcome to that determined by the Commissioner. Further, with the exception of a concession made by Ms Evans in respect of the inclusion of the car allowance in the amount of compensation determined by the Commissioner (discussed in further detail below), there were no public interest considerations or significant factual errors identified which warranted the Commission granting CGW permission to appeal.
[10] We will deal with the parties’ written and oral submissions in detail below in the context of dealing with the grounds of appeal relied upon by CGW. We will deal with grounds 2 and 7 together as they both appear to relate to what might be characterised as merit arguments regarding the application.
Dealing with the Appeal
[11] This appeal is one to which s.400(1) of the Act applies. Section 400(1) 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.
[12] In the Federal Court Full Court decision 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin (GlaxoSmithKline) a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
Consideration of the Issues
[14] We turn now to deal with each of the grounds of appeal relied upon by CGW.
Ground 1 – the Seek advertisements
[15] CGW in its written submission characterised this issue as a significant error. More particularly, CGW contended that this was never a point of fact proven by either party and so should not have been admitted as evidence by the Commissioner. CGW further contended that the Commissioner did not allow CGW to submit evidence from CGW’s Seek contact that the advertisement for Ms Evans’ former position was not posted prior to her termination. These submissions were reiterated by CGW at the hearing.
[16] The Respondent submitted that CGW made attempts at the hearing to lead evidence on this issue but was unsuccessful in the absence of a witness through which the material could be tendered. Irrespective of this, the Respondent pointed to paragraph [59] of the Decision which deals with the first Seek advertisement which was allegedly posted prior to Ms Evans’ termination. In that paragraph, the Commissioner weighs up the relevance of the first Seek advertisement and the conduct of the meeting with Ms Evans on 8 October 2014 which preceded her dismissal. Having done so, the Commissioner states in the last sentence of paragraph [59] that “…I have not had regard to the existence of the first advertisement.” In other words, this issue was not a material consideration in the Decision. We therefore fail to see how there could be any error on the part of the Commissioner when the matter was not a material consideration.
[17] This supports a finding that it would not be in the public interest to grant permission to appeal on this ground.
Grounds 2 and 7 – the warnings and the characterisation of the Decision as controversial
[18] In its written submissions, CGW stated that Ms Evans had been given three “very fair warnings based on factual errors that were made within our business that cost us considerable reputation damages”. CGW described Ms Evans’ last error as “borderline gross misconduct” and characterised the Decision as “…very controversial on messages sent to business and their ability to run their business accordingly.” That view was reiterated at the hearing.
[19] The Respondent submitted that the Commissioner went to some length in the Decision to canvass the warnings given to Ms Evans. As mentioned above, the Respondent also submitted that these grounds of appeal reflected CGW’s preference for an alternative outcome to that determined by the Commissioner.
[20] As to whether there was a valid reason for Ms Evans’ dismissal, based on the material before her, the Commissioner concluded that:
“[30]None of the three incidents I have taken into account, either individually or collectively, appear to have been of such a serious nature that the Applicant's employment should be terminated.
…
[32] The Applicant is not blameless in the errors that occurred. The three matters which form the basis for the termination of the Applicant's employment (to which I have had regard) each indicate an inattention to detail and a failure to complete tasks to a level required of the Respondent. That others failed to also pick up the mistakes (the AA Holdings warehouse on the over-invoicing) or they could be attributed in some part to other problems or people (the internet with the cigars, Mr Carter's role in the Rothmans matter) does not diminish the responsibility the Applicant had in her position for invoicing, ordering and delivery to be accurate and complete.
[33] I have taken into account that each of the errors attributed to the Applicant's performance to which I have had regard were all rectified. This does not excuse the mistakes but does indicate that the errors were not irretrievable. I am not convinced that the errors demonstrate some systemic problems with the Applicant's performance such that they provided a sound and defensible reason for the termination of the Applicant's employment.
[34] I therefore find that there is no valid reason for the termination of the Applicant's employment.”
[21] Further, in considering whether the dismissal was harsh, unjust or unreasonable the Commissioner stated in the Decision:
“[65] I have considered carefully all of the material before me in this matter. On the basis of the evidence, the decision to terminate the Applicant's employment did not provide a valid reason or the termination of her employment and was disproportionate to the performance issues raised. For this reason I consider the dismissal to be harsh and unjust.
[66] Even if the performance issues did provide a valid reason for the dismissal the surrounding circumstances including the email of 18 September 2014, the inactivity by Mr Graham in providing the support sought by the Applicant and the limited period within which the Applicant was given to demonstrate any improvement in her performance prior to the termination of her employment suggest that the termination of employment was unreasonable.
[67] For all of these reasons I find that the dismissal of the Applicant was harsh, unjust or unreasonable. She was, therefore, unfairly dismissed.”
[22] We consider that these findings were reasonably open to the Commissioner based on the material before her. Drawing on the language in GlaxoSmithKline, the Decision does not in our view manifest an injustice, nor is it counter intuitive or involve the application of legal principles which appear disharmonious when compared with other recent decisions dealing with similar matters.
[23] This analysis does not support a finding that it would not be in the public interest to grant permission to appeal on this ground.
Ground 3 – Ms Evans would have resigned her employment in January 2015
[24] In its Notice of Appeal, CGW stated the following in respect of this ground:
“… MS [sic] Evans gained employment and left this employment voluntarily in January when she states her mother passed. Along this same assumption, she would have left our employee at this time to relocate given the same reasons she provided for resigning her employment. I feel this is a large issue fact that was not considered.” 9
[25] At the hearing, CGW submitted that it considered Ms Evans’ relocation to the La Trobe Valley to be a relevant factor.
[26] The Respondent submitted that CGW’s view that Ms Evans would have left is incorrect, describing the view as “quite malicious.” The Respondent explained the circumstances surrounding Ms Evans’ resignation in the following terms:
- Ms Evans commenced working as a casual in a factory in December 2014;
- the factory closed for the Christmas period;
- as a result, Ms Evans was without an income and was unable to maintain her home in Melbourne; and
- at roughly the same time, Ms Evans’ mother passed away and Ms Evans made the decision to resign and move back to the La Trobe Valley to be with her family.
[27] The Respondent further submitted that had Ms Evans not been dismissed by CGW, she would have still had an income and would have had access to paid leave which would have enabled her to maintain her residence in Melbourne and take leave to be with family following her mother’s death.
[28] The Respondent’s submissions on this point are consistent with Ms Evans’ evidence in the proceedings before the Commissioner where she attested:
“Ms Evans, are you able to give the Commissioner a slightly fuller picture of the circumstances surrounding your current unemployment? Why did you leave your previous job?---Yes. The factory I was working I was closed over the Christmas period and just before I was due to go back my mum had passed away so I had a further two weeks off. I went back for a week and then I realised, due to no work I can’t afford my property, so I was forced to resign and then relocate back to the family home.” 10
[29] Also relevant is the following extract of Ms Ozioko’s cross examination on behalf of CGW of Ms Evans in the proceedings below:
“MS OZIOKO: Lastly, at the beginning of your statement you had indicated you’re unemployed, you statement it says that you’re unemployed, are you currently now unemployed?---Currently now unemployed.
When did that change?---I ended up leaving the company that I was working for afterwards, in the middle of January.
Did you leave them voluntarily?---Yes.
I have nothing else for this witness.” 11
[30] In its written closing submissions in the proceedings below the only reference made by CGW to this issue was its submission that “…any order for compensation should be nominal in light of…(v) The Applicant having secured employment, having since resigning this position that was in no direct cause by our business. Given the reasons provided by Ms. Evans for her employment ceasing, she would have ceased employment with our company under those same facts.”
[31] The extract from the transcript at paragraph [29] above indicates that CGW did not challenge Ms Evans’ evidence on this issue below. In those circumstances, the Commissioner’s finding was reasonably open to her based on the evidence. Accordingly, we discern no error by the Commissioner. Further, we note that an appeal is not intended to provide an avenue for an unsuccessful party to rerun their case, absent an error on the part of the primary decision maker. 12 This appears to be the case in respect of this ground.
[32] The absence of any error by the Commissioner on this issue does not support a finding that it would be in the public interest to grant permission to appeal on this ground.
Ground 4 – The decision to grant permission for Ms Evans to be legally represented
[33] In its written submissions CGW stated the following in respect of this ground:
“[14] The hearing was presented on an unleveled playing field, while I am a HR Manager for the business; I am in no way an attorney. There were numerous times during the hearing that the commissioner and the reprimanded me for posing questions as leading but the attorney was not held to that same regard.”
[34] At the hearing the Respondent largely referred to the transcript below on this issue and stated that CGW could have sought to be represented in the proceedings at first instance.
[35] As stated by this Full Bench in Singh v Metro (Singh) 13:
“The granting of permission under s.596 involves a two-step process. 14 The first is that there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of a discretion”.15 The second is that the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission. Accordingly in respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.16” (Citations retained)
[36] The Commissioner’s decision regarding the issue of representation was given in transcript in the following terms:
“THE COMMISSIONER: Thank you. Having considered the submissions of both parties, with respect to this matter, I’m satisfied, under section 596(2)(b), that it would be unfair not to allow the applicant, Ms Evans, to be represented. Having found so, I do grant permission for Ms Evans to be represented in the proceedings today.” 17
[37] It is clear that the Commissioner correctly applied the two step process referred to in Singh.
[38] Again, this supports a finding that it would not be in the public interest to grant permission to appeal on this ground.
Ground 5 – the amount of compensation awarded to Ms Evans
[39] By way of background, the Commissioner determined that had Ms Evans not been dismissed she would have remained in employment with CGW for a further period of 12 months and stated in the Decision that “I am satisfied that the Applicant’s car allowance should be included in a consideration of the ‘total amount of remuneration’ she would have received.” 18 As previously mentioned, the Commissioner ordered that CGW pay Ms Evans an amount of $24,098.88 plus 9.5 per cent superannuation in compensation.
[40] In respect of this appeal ground CGW submitted that the amount of compensation awarded by the Commissioner was more than 6 months’ pay, including all entitlements, and that Ms Evans was also provided a car allowance for that timeframe on judgement, which was only a tool of trade part of her package. CGW also reiterated its view that had Ms Evans not been dismissed she would have resigned her employment with CGW following the death of her mother in January 2015.
[41] The Respondent submitted that there was nothing in the evidence to justify going behind the Commissioner’s finding and calculations regarding the amount of compensation awarded. In response to a question from the Full Bench, the Respondent conceded that the car allowance should not have been included in the calculations regarding compensation as it was to reimburse Ms Evans for the cost of using her private motor vehicle to make deliveries on behalf of CGW.
[42] At the hearing both parties agreed that should the Full Bench determine that the Commissioner had erred in calculating the level of compensation and grant permission to appeal on this ground, the Full Bench should proceed to determine the appropriate amount of compensation. To that end, the parties undertook to provide further written submissions on this issue. In short, in those further written submissions CGW calculated the total amount of compensation of $18,060.00 plus 9.5% superannuation, while the Respondent calculated the amount of compensation payable as $21,498.88 plus 9.5% superannuation.
[43] At the hearing it was not disputed by the Respondent that the $100 per week car allowance paid to Ms Evans was to reimburse Ms Evans for vehicle running costs and wear and tear on her private motor vehicle incurred when making deliveries for CGW. As an expense reimbursement, the allowance should not be considered as remuneration for the purposes of s.392(2)(c) of the Act. This is consistent with the approach to determining an employee’s earnings set out in s.332 of the Act. Particularly relevant is s.332(2)(b) which provides that an employee’s earnings do not include reimbursements.
[44] This analysis supports a finding that the Commissioner erred in including the car allowance in the calculation of the amount of compensation awarded to Ms Evans. In our view the error is an appellable error in that as a result of the error the Decision manifests an injustice and is inconsistent with other decisions on this issue. Accordingly, we consider that it is in the public interest to grant permission to appeal on this ground and in accordance with the abovementioned agreement of the parties we now turn to determine the appropriate amount of compensation.
[45] As a starting point we see no basis to disturb the Commissioner’s finding that but for her dismissal Ms Evans would have remained in employment with CGW for a further 12 months. That finding was reasonably open to the Commissioner based on the material before her.
[46] Ms Evans’ annual salary (excluding the car allowance) was $42,977.76. This amount is reduced by Ms Evans’ earnings of $2,844.41 and the 10% contingency determined by the Commissioner after which an annual amount of $36,120.01 remains. As this amount exceeds the compensation cap specified in s.392(5) of the Act, the amount of compensation is determined as per s.392(6) and equates to the total amount of remuneration to which Ms Evans was entitled to during the 26 weeks immediately before her dismissal. That amount is half of Ms Evans’ annual salary, i.e. $21,488.88 plus 9.5% superannuation. CGW in its post hearing submission on this issue submitted that a revised amount of lost earnings of $40,133.35 should be used on the basis for calculating the amount of compensation as there was an error in the calculations in decision filing. However, no substantiation of the alleged error was provided by CGW, hence there is no basis to rely on the revised annual salary figure submitted by CGW.
[47] For the reasons outlined above, we grant CGW permission to appeal on this ground and quash the Commissioner’s order for compensation and determine that the appropriate amount of compensation is $21,488.88 plus 9.5% superannuation.
Ground 6 – Ms Evans efforts to find alternative employment
[48] In its written submissions CGW stated the following in respect of this ground:
“There were never any attempts or proof made available to us upon the hearing of Ms. Evans attempts [to] find suitable employment or to justify such circumstances.”
[49] At the hearing, the Respondent referred to Ms Evans’ evidence in the proceedings below. That evidence is set out at paragraphs [28] and [29] above.
[50] From paragraph [29] above it is clear that CGW did not cross examine Ms Evans on her efforts to find alternative employment. Further, no mention was made of the issue in its written closing submissions in the proceedings below, despite Ms Evans’ written closing submissions including the following:
“Ms Evans has made numerous attempts to obtain employment since her termination. She was not able to secure a commensurate managerial position, but did work in a factory on a casual basis for some time in December 2014. The Christmas period intervened, and then her mother passed away in January 2015 and she had some further time away from job-hunting. As at the date of writing, she has not succeeded in finding employment.” 19 (Citation not included)
[51] This ground again appears to involve CGW seeking to rerun their case on appeal. Against that background and consistent with our finding in respect of ground 3 above, we discern no error by the Commissioner on this ground. This does not support a finding that it would be in the public interest to grant permission to appeal on this ground.
Conclusion
[52] In summary, based on the above analysis of each of the appeal grounds relied upon by CGW, it is clear that the appeal does not raise any issue of importance or general application which would attract the public interest in respect of appeal grounds 1-4 and 6-7. Further, we do not consider that the Decision in respect of these grounds otherwise manifests any injustice or was attended by any appealable error. Having considered all of the matters raised by CGW in respect of these grounds, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal. Permission to appeal on these grounds is therefore refused.
[53] However, in respect of appeal ground 5, for the reasons outlined above we find that the Commissioner erred in in including the car allowance in the calculation of the amount of compensation awarded to Ms Evans. Further, we consider that it is in the public interest to grant permission to appeal. Accordingly, we grant permission to appeal, quash the Commissioner’s order for compensation and determine that the appropriate amount of compensation is $21,488.88 plus 9.5% superannuation. An order (PR569447) requiring the payment of this amount within 21 days of the order and rescinding the Stay Order issued by consent on 11 May 2015 will be issued conjointly with this decision.
VICE PRESIDENT
Appearances:
S. Ozioki for Cigarette & Gift Warehouse (Franchising) Pty Ltd t/a Freechoice Bentleigh
J. Taylor of counsel with J. Ellingham solicitor for K. Evans.
Hearing details:
2015.
Sydney:
18 June.
1 [2015] FWC 2276
2 PR567203
3 Ibid at paragraph [65]
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 Form F7 – Notice of Appeal at Item 2.1
10 Transcript of U2014/14497 at PN390
11 Ibid at PNs384-387
12 Reid v Broadspectrum Australia Pty Ltd[2015] FWCFB 519 at paragraph [12]
13 [2015] FWCFB 3502
14 Warrell v Walton (2013) 223 IR 335 at [24]
15 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
16 (1936) 55 CLR 499 at 505
17 Transcript of U2014/14497 at PN15
18 [2015] FWC 2276 at paragraph [83]
19 Applicant’s Closing Submissions in U2014/14497 at paragraph 62(d)
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