Evolving Support Services Pty Ltd v Ms Petra Molokac
[2024] FWCFB 428
•11 NOVEMBER 2024
| [2024] FWCFB 428 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Evolving Support Services Pty Ltd
v
Ms Petra Molokac
(C2024/4717)
| VICE PRESIDENT GIBIAN | SYDNEY, 11 NOVEMBER 2024 |
Appeal against decision [2024] FWC 1538 of Commissioner Simpson at Brisbane on 14 June 2024 in matter number U2024/3071 – extension of time required – factors to be taken into account in considering whether to extend time to appeal – whether reasonable explanation for delay – whether arguable case of appealable error demonstrated – allegation of criminal trespass – whether arguable that Commissioner erred in finding that no trespass had occurred – whether Commissioner took into account factors in s 392(2) in assessing amount of compensation – no arguable case of appealable error – extension of time refused – permission to appeal would have been refused in any event.
Introduction
Evolving Support Services Pty Ltd (Evolving or the appellant) has lodged a notice of appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, from a decision of Commissioner Simpson of the Fair Work Commission (the Commission). The decision concerns an application for an unfair dismissal remedy brought under s 394 of the Act by Petra Molokac (Ms Molokac or the respondent).
The Commissioner found that there was no valid reason for Ms Molokac’s dismissal for the purposes of s 387(a) of the Act, that the process followed in effecting the dismissal was procedurally flawed and that Ms Molokac was provided with no opportunity to respond to the reasons for termination for the purposes of s 387(b). The Commissioner observed that the making of unfounded criminal allegations against Ms Molokac and the termination of her employment without notice or opportunity to respond caused her considerable distress and had a harsh impact on her. The Commissioner was, accordingly, satisfied that the dismissal was harsh, unjust and unreasonable. The Commissioner ordered that Evolving pay Ms Molokac the gross amount of $14,400 plus 11% superannuation within 21 days of the date of the decision.[1]
Evolving did not immediately appeal the decision of Commissioner Simpson. In accordance with rule 128(2) of the Fair Work Commission Rules 2024 (Cth) (the Rules), a party seeking to institute an appeal under s 604 of the Act must lodge a notice of appeal within 21 days of the date of the decision being appealed against or within such further time allowed by the Commission on application by the appellant. Evolving did not file its notice of appeal until 12 July 2024, which is seven days beyond the time limit.
For the reasons that follow, the application for an extension of time to lodge the notice of appeal is refused. Even if an extension of time was granted, permission to appeal would have been refused.
Background and decision under appeal
Evolving Support Services is a disability support provider. The Commissioner recorded in his decision that the appellant’s response to Ms Molokac’s unfair dismissal application indicated it had 75 employees at the time of her dismissal.[2]
Ms Molokac commenced employment with Evolving on 22 May 2023 as a disability support worker. From the commencement of her employment until March 2024, Ms Molokac performed work providing care to clients at a particular work location being a home at which the clients reside and are provided with care. Ms Molokac was directed to move to a different work location on 13 March 2024 as a result of allegations of bullying made by some of her colleagues. As a result of being directed to work at a different location, Ms Molokac collected items from the home of her original clients on 14 March 2024. Ms Molokac then provided a medical certificate indicating she was not able to work until 18 March 2024. Ms Molokac was served with a letter of termination on 15 March 2024 stating that she was summarily dismissed for serious misconduct.
A number of allegations were raised by Evolving in relation to Ms Molokac. The Commissioner recorded in the decision that the primary reason given for the termination was the allegation that Ms Molokac had entered the home at which she performed work when she was not on a rostered shift and without the express permission of Evolving.[3] The letter of termination referred to allegations that Ms Molokac had removed items that did not belong to her and engaged in theft. The matter was reported to police. Even aside from the allegation of theft, Evolving submitted that entering the premises constituted ‘criminal trespass’.
The Commissioner found that the evidence supported the conclusion that the items removed from the property belonged to Ms Molokac and not to Evolving. The Commissioner asserted that it reflected poorly on Evolving that ‘it had accused Ms Molokac of theft but when it came to the point of those allegations being tested the Respondent made very little attempt to substantiate these serious allegations’.[4] The Commissioner noted that Evolving did not suggest that the alleged bullying formed part of the reasons for termination. In any event, the Commissioner concluded that there was no probative evidence before the Commission that would support a conclusion that Ms Molokac had engaged in bullying of other staff.[5]
Having set out Ms Molokac’s evidence, the Commissioner concluded that he did not accept that she had engaged in criminal trespass. The Commissioner stated that it was clear the reason for Ms Molokac visiting the property was to collect her own possessions and to return a garage remote control. The Commissioner observed that Ms Molokac had the consent of Evolving to visit the property to perform her duties for the 10-month period up to 14 March 2024 and there was no evidence that the consent had been rescinded or any direction given for her not to attend the property. As a consequence, the Commissioner concluded that there was no valid reason for dismissal.[6]
The Commissioner then considered the other factors in s 387 of the Act. The Commissioner noted that Ms Molokac was given no opportunity to respond to the reason for termination and that the making of unfounded criminal allegations against Ms Molokac and the termination of her employment without notice or opportunity to respond had caused her considerable distress, pointing to the dismissal having had a harsh impact on her.[7] The Commissioner indicated that he was satisfied that the dismissal was harsh, unjust and unreasonable.
Noting that Ms Molokac did not seek reinstatement, the Commissioner indicated that he did not intend to consider the remedy of reinstatement in circumstances where it was not sought. The Commissioner assessed that Ms Molokac was likely to have remained in employment with Evolving for at least a further 12 weeks. From that figure, the Commissioner deducted 6 weeks’ pay because Ms Molokac had obtained commensurate employment 6 weeks after the dismissal.[8] The Commissioner accepted that Ms Molokac was distressed following her dismissal which impacted her efforts to seek alternative employment and did not make any further deduction in relation to mitigation.[9] The Commissioner ordered Evolving to pay $14,400 plus superannuation, representing six weeks of remuneration, plus 11% superannuation to be paid into Ms Molokac’s nominated superannuation account.
Grounds of Appeal
The grounds of appeal in the notice of appeal are as follows:
1. The Commissioner acted on the wrong part of the Fair Work Act 2009
Commissioner Simpson failed to consider the following:
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed:
Referring to the below facts in part 2 of this document, Petra Molokac would have been terminated upon return of personal leave. Petra Molokac’s employment contract outlined one weeks’ notice to be paid in lieu of notice. The maximum amount Petra would have otherwise been entitled to is $2400.00 plus super.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal:
The commissioner failed to question Petra about her efforts to find other employment opportunities. It is believed that Petra Molokac was not seeking employment as she was working privately with Kasane Bilby as an independent support worker and if this is not true, Petra was otherwise waiting for Kasane Bilby to leave Evolving Support Services to begin working with Kasane Bilby.
(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.
The commissioner failed to consider Petra Molokac’s business Little Prague Delights. I would request evidence to show Petra did not increase her involvement in her own business at the time of her apparent unemployment, by way of profit and loss comparisons of the months January-April. I would also request Petra show evidence of when she begun employment with Kasane Bilby by way of statement to be received by First 2 Care plan managers, outlining all invoices paid to Petra Molokac between the dates of 14th of March 2024 – 25th March 2024.
2. The commissioner did not fully understand the facts.
Petra Molokac has disclosed throughout the process that she did in fact enter the premises whilst off duty and during a period when no staff or clients would be on-site. By acting in such a way, by law, Petra has committed trespass as outlined in Section 418(2) of the Criminal Code Act 1899 (Qld) defines an offence of illegal entering when any part/instrument or attachment of a person is within the dwelling or premises. A person can only legally enter a building if they have the permission of the actual owners of the property. Petra had not obtained permission from the management of Evolving Support Services, of which is the listed tenant of the property. As Petra Molokac was not on duty, there is no expectation of assumed permission at the time of Petra’s entry.
Given Petra, has broken the law we argue:
1. Petra Molokac was not unfairly dismissed, OR
2. Petra’s misconduct contributed to the employer’s decision to dismiss the person and as such the ordered compensation should have been reduced.
Extension of time
In the notice of appeal, Evolving provides the following explanation for filing seven days out of time:
We received no correspondence outlining our rights to appeal or how to appeal. This information has only become available to us since engaging legal advice recently.
Section 604(1) of the Act provides that a person who is aggrieved by a decision of the Commission may appeal the decision, with permission of the Commission. Section 609(1) of the Act allow the President to make procedural rules in relation to the practice and procedure to be followed by the Commission or the conduct of business in relation to matters allowed or required to be dealt with by the Commission. Among other things, the procedural rules can deal with ‘the requirements for making an application to the FWC’.[10]
The Rules do so in relation to appeals. Rule 128(1) requires that a person seeking to institute an appeal under s 604 of the Act ‘must do so by lodging a notice of appeal’. Rule 128(2)(a) and (c) provide that the notice of appeal must be lodged within 21 days after the date of the decision being appealed against or ‘within such further time allowed by the FWC on application by the appellant’. If a notice of appeal is filed out of time, no competent appeal exists until an extension of time is granted.[11]
Time limits, particularly of the kind in Rule 128(2) of the Rules relating to appeals, are not simply extended as a matter of course. There are important administrative and industrial reasons for setting a time limit for the bringing of an appeal and an extension should only be granted where there are good reasons for doing so.[12] Previous decisions of the Commission have identified some factors that may be relevant when deciding whether an extension of time to an appeal should be granted. Relevant considerations may include:[13]
(a)Whether there is a satisfactory reason for the delay;
(b)The length of the delay;
(c)The nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(d)Any prejudice to the respondent if time were extended.
In broad terms, the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of time within which to lodge the appeal.[14] There were no submissions made in this matter that the Full Bench should consider anything other than the above issues in contemplating whether an extension of time to an appeal should be granted or not.
Reason for Delay
The only reason for the delay provided in the notice of appeal is that no correspondence was received by Evolving outlining the rights of appeal and that this information only become available to the appellant once legal advice was sought. No further written submissions were received on this point and no oral submissions were made in relation to the reasons for the delay during the hearing of the appeal.
Evolving has not provided any other justification for its delay. Evolving complains that it only became aware of its appeal rights when it obtained legal advice. Evolving is a substantial business. It has provided no explanation as to what steps it took, if any, to obtain timely legal advice. We are unable to accept that it has demonstrated a satisfactory reason for the delay in filing its notice of appeal. On the basis of the information before the Full Bench, no satisfactory reason for the delay has been provided and this weighs against an extension of time being granted.
Length of Delay
The length of delay is seven days. In considering whether to allow further time to appeal, we have taken into account the fact that the delay was not long.
Nature of the Grounds of Appeal
The grounds of the appeal are twofold: firstly, that the order for compensation was made without proper consideration being given to the factors that must be taken into account in accordance with s 392(2) of the Act and, secondly, that the Commissioner misinterpreted the facts in concluding that Ms Molokac’s actions did not amount to trespass under Queensland legislation.
It is convenient to first address ground 2. Ground 2 alleges that Ms Molokac committed a trespass for the purposes of s 418(2) of the Criminal Code Act 1899 (Qld) as a result of her entering the work premises whilst off duty and during a period when no staff or clients would be present. Evolving submits that Ms Molokac had not obtained permission from it to enter the premises and there was no assumed permission for her to enter the property. Consequently, it says Ms Molokac engaged in a trespass. It further submits that the decision would create a precedent that a person who performs work within the home of another person would be able to access the home at any time of the night or day. As a consequence, Evolving submits that the Commissioner should have found Ms Molokac was not unfairly dismissed or had engaged in misconduct that should have reduced any compensation to be awarded.
Evolving’s reference to s 418(2) of the Criminal Code Act 1899 (Qld) is misconceived. That section defines the concept of entering a dwelling or premises for the purposes of the offence of burglary and does not in of itself create an offence. An offence of trespass is found in s 11(1) and (2) of the Summary Offences Act 2005 (Qld). That section provides that a person must not unlawfully enter, or remain in, a dwelling or the yard for a dwelling, or a place used as a yard for, or a place used for, a business purpose. The term ‘unlawfully’ is defined to mean ‘without authorisation, justification or excuse’.[15]
Evolving asserts that Ms Molokac had not obtained its permission to enter the premises outside of work hours and that this fact alone constituted trespass. The Commissioner concluded, on the facts, that Ms Molokac was authorised to, and had a legitimate purpose to, enter the premises in order to collect her possessions after having been directed to work at another location. This finding was open to the Commissioner. As the Commissioner observed, Ms Molokac was obviously required to attend the premises in order to undertake the duties associated with her employment and had the consent of Evolving to do so. Evolving had not rescinded that consent or directed that Ms Molokac not attend the premises if she had a legitimate reason associated with her employment do to so.[16] The conclusion of the Commissioner was, in our opinion, not only open to him but was correct.
Ms Cannavo, who appeared on behalf of Evolving on the hearing of the appeal, submitted that the respondent was concerned that, if the decision of the Commissioner is correct, staff could attend a home it operated at any time without permission. The submission is again misconceived. Nothing in the decision of the Commissioner suggests that an employee is at liberty to enter a home operated by Evolving without having a legitimate work-related reason to do so. However, Ms Molokac had such a reason. The Commissioner found that Ms Molokac visited the premises to collect items that belonged to her and to return the garage door remote control.[17] The Commissioner further noted that Ms Molokac visited the premises when she did to avoid upsetting the residents.[18] There is no suggestion that this evidence was not genuine or should not be accepted.
For these reasons, there is no arguable error in the Commissioner’s finding that no trespass occurred. There is no merit to ground 2. In the notice of appeal, Evolving continues to assert that Ms Molokac had engaged in criminal trespass by reference to the incorrect provision of the wrong legislation and in the face of factual findings made by the Commissioner which mean that no such offence could have been committed. We share the concern of the Commissioner that Evolving was, and continues to be, willing to make accusations of criminal conduct against a former employee without giving proper consideration to whether the allegations could be substantiated.
It is then necessary to consider ground 1. Ground 1 contends that, in determining the amount of compensation to be awarded to Ms Molokac, the Commissioner failed to consider the factors referred to in s 392(2)(c), (d) and (e) of the Act. Ms Cannavo submitted that Ms Molokac would have been terminated upon her return from personal leave as a result of the alleged misconduct. Evolving also contended that the Commissioner failed to question Ms Molokac about the steps she took to mitigate her losses and failed to question her about earnings from a business that Ms Molokac operates, Little Prague Delights.
Section 392(2) of the Act requires that, in determining any amount of compensation to be paid in lieu of reinstatement, the Commission must take into account all the circumstances of the case including the matters specified in subsections (a) to (g). Those matters include: (c) the remuneration the person would have received, or would have been likely to receive, if the person had not been dismissed; (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.
We do not accept that the Commissioner failed to consider the factors set out in s 392(2)(c), (d) and (e). The Commissioner expressly considered how long Ms Molokac was likely to have remained employed by Evolving if she had not been dismissed to determine the remuneration she was likely to have received in that period for the purposes of s 392(2)(c). The Commissioner recounted the submissions of the parties in this respect, including Evolving’s submission that ‘given Ms Molokac’s attitude she could not see a longstanding employment relationship’. The Commissioner assessed that Ms Molokac was likely to have remained employed by Evolving for a further 12 weeks.[19]
Evolving now submits that, having regard to the allegations of misconduct, Ms Molokac would have been terminated upon her return from personal leave and that she would only have been entitled to one weeks’ pay in lieu of notice. It is unclear whether a submission was made to the Commissioner that the amount of compensation should be reduced because Ms Molokac would have been dismissed in any event. It is not recounted in the Commissioner’s decision. On appeal, Evolving did not suggest it had made the submission at first instance or point to evidence before the Commissioner that Evolving would have dismissed Ms Molokac upon her return from sick leave had it not done so earlier. Even if the submission had been made, the Commissioner was not obliged to accept it. The submission that Ms Molokac would have been dismissed in any event was dependent on the assertion she had engaged in misconduct. The Commissioner concluded that she had not engaged in misconduct. We have already concluded that no arguable case of error has been established in relation to that finding.
Evolving sought to lead new evidence on appeal which it submits indicates that Ms Molokac engaged in misconduct other than that referred to in the decision below. The further evidence comprised what appear to be internal communications and documents of Evolving said to reflect on Ms Molokac’s performance and conduct. The material was not put forward in circumstances in which the Full Bench would ordinarily admit further evidence on appeal under s 607(2) of the Act.[20] The evidence could have been obtained and put before the Commissioner but was not. The documents do not appear to us to demonstrate Ms Molokac engaged in any misconduct and are not likely to have resulted in a different outcome before the Commissioner. The further evidence sought to be relied upon by Evolving, even if admitted, would not assist in establishing error on the part of the Commissioner or that any different order should have been made with respect to compensation.
Section 392(2)(d) requires the Commission to take into account the efforts of the person to mitigate the loss suffered and s 392(2)(e) requires the Commission to take into account remuneration earned after dismissal. Again, the Commissioner expressly considered those matters. The Commissioner accepted the evidence of Ms Molokac that she was distraught and anxious in the weeks after her dismissal and that would have impacted on her efforts to seek other employment.[21] The Commissioner recorded that Ms Molokac had obtained new work as an independent contractor from 26 April 2024 after being approached by a former client of Evolving and the earnings she received from that work.[22]
The assessment of the amount of compensation was a matter within the discretion of the Commissioner so long as he took into account the factors listed in s 392(2). There is, in our opinion, no doubt that the Commissioner considered both the efforts Ms Molokac made to mitigate her loss by seeking other employment and the amount of remuneration she earned from other work following her dismissal. The Commissioner’s determination of the amount of compensation was orthodox. The Commissioner deducted the amount Ms Molokac earned from other work from the amount he assessed she would have earned had her employment with Evolving continued for a further 12 weeks.
To the extent that Evolving submits that the Commissioner should have considered Ms Molokac’s earnings from a separate business known as Little Prague Delights, the submission has no merit. In her appeal submissions, Mr Molokac says that she did not work in the business in the period following her dismissal. Evolving asserts that Ms Molokac did not provide adequate evidence as to her earnings from the business, for example, a profit and loss statement or balance sheet. Ms Molokac did provide bank statements. In any event, Evolving does not suggest there was any evidence before the Commissioner that Ms Molokac had obtained earnings from the business. There was simply nothing before the Commissioner to indicate Ms Molokac earned remuneration from employment or work in the business in the period between her dismissal and the making of the order for compensation for the purposes of s 392(2)(e).
The Commissioner recorded that Ms Molokac gave direct evidence in relation to her earnings following the dismissal. It was open to the Commissioner to accept that evidence. Evolving appears to infer that it was incumbent on the Commissioner to undertake an inquisitorial exercise to interrogate Ms Molokac’s evidence. Whilst it may have been open to the Commissioner to do so, if a witness gives direct evidence of his or her earnings and there is no contrary evidence before the Commission, it is obviously open for the Commission to accept that evidence. The Commissioner was not obliged to further interrogate uncontradicted evidence given by Ms Molokac.
For these reasons, we are not satisfied that either ground 1 or 2 in the notice of appeal raise an arguable case of appealable error. This weighs against allowing further time to file the notice of appeal.
Prejudice to the respondent
Given Ms Molokac has already filed all her evidence and indeed appeared at the hearing of the appeal, on one hand, there is little prejudice to her by the Full Bench allowing the appeal to be filed out of time. However, Ms Molokac has been inconvenienced by having to file submissions and devote her time and energy to an appeal with little or no prospects of success. This included a stay application which was refused, and correspondence in relation to Evolving’s compliance with the order for compensation made by Commissioner Simpson. The prejudice to the respondent weighs against an extension of time being granted to file the notice of appeal.
Conclusion on extension of time
Having considered the reasons given for the delay, the length of the delay, the merits of the contentions sought to be advanced on appeal and the prejudice to Ms Molokac, the Full Bench is not satisfied that it is appropriate to allow further time for Evolving to file its notice of appeal. The application for an extension of time to do so should be refused.
Permission to Appeal
Even if the Full Bench were to allow further time for Evolving to file its notice of appeal, we would have refused permission to appeal. The decision under appeal is one to which s 400(1) of the Act applies and, as such, the Commission must not grant permission to appeal unless it considers that it is in the public interest to do so. Evolving did not separately address the question of permission to appeal beyond asserting in the notice of appeal that it is in the public interest that all facts of each case are considered, and all parts of the Act are referred to in detail to ensure a fair and just decision is made without prejudice.
The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.[23] Some circumstances which may warrant permission to appeal being granted include where a matter raises issues of importance and general application, the decision at first instance manifests an injustice or the result is counter intuitive or the legal principles applied appear disharmonious with other recent decisions.[24] Mere identification of error may, in itself, be insufficient to warrant a grant of permission to appeal. However, permission to appeal will rarely be granted unless an arguable case of appealable error is demonstrated.[25]
For the reasons we have already given, grounds 1 and 2 as set out in the notice of appeal do not raise an arguable case of appealable error. The appeal does not, in our opinion, raise any issue of general importance or wider application so as to render it in the public interest to grant permission to appeal, nor do we believe any injustice would be caused to Evolving if permission to appeal is refused. If the Full Bench had allowed further time to file the notice of appeal, it would have refused permission to appeal.
Conclusion
Having regard to all of the relevant considerations, we are not persuaded that it is in the interests of justice to allow further time for Evolving to lodge its notice of appeal. The Full Bench orders that further time is not allowed for the appellant to lodge its notice of appeal for the purposes of Rule 128(2)(c) of the Rules.
VICE PRESIDENT
Appearances:
S Cannavo, Operations Manager for the Appellant.
P Molokac, for herself as the Respondent.
Hearing details:
2024.
Sydney (Video using Microsoft Team):
19 September.
[1] Molokac v Evolving Support Services Pty Ltd[2024] FWC 1538 at [91].
[2] [2024] FWC 1538 at [7].
[3] [2024] FWC 1538 at [68].
[4] [2024] FWC 1538 at [70].
[5] [2024] FWC 1538 at [72].
[6] [2024] FWC 1538 at [74]-[76].
[7] [2024] FWC 1538 at [78] and [82].
[8] [2024] FWC 1538 at [88]-[89].
[9] [2024] FWC 1538 at [90].
[10] Fair Work Act 2009 (Cth), s 609(2)(a).
[11] Strangio v Westpac Banking Corporation [2008] FCA 1408 at [17] (Kenny J); Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [24] (Kenny J).
[12] Jaafar Zadeh v AWX Pty Ltd t/a AWX Group[2015] FWCFB 8227 at [6]; Stork v ABN Group Vic Pty Ltd[2023] FWCFB 68 at [5].
[13] SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338 at [42]; Jobs Australia v Eland[2014] FWCFB 4822 at [3]; Jaafar Zadeh v AWX Pty Ltd t/a AWX Group[2015] FWCFB 8227 at [6].
[14] Wilson v CPB Contractors Pty Ltd[2017] FWCFB 5387 at [7].
[15] Summary Offences Act 2005 (Qld), Schedule 2. See also Seiffert v Commissioner of Police [2021] QCA 170; (2021) 8 Qd R 415 at [3] (Fraser JA).
[16] [2024] FWC 1538 at [75].
[17] [2024] FWC 1538 at [73].
[18] [2024] FWC 1538 at [71].
[19] [2024] FWC 1538 at [88].
[20] See, for example, Construction, Forestry, Maritime, Mining and Energy Union v LS Precast Pty Ltd[2019] FWCFB 1431 at [17]-[19] referring to Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.
[21] [2024] FWC 1538 at [90].
[22] [2024] FWC 1538 at [87]-[88].
[23] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46]; Water Corporation v Batchem[2017] FWCFB 760; (2017) 263 IR 189 at [27].
[24] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 at [27].
[25] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]; Water Corporation v Batchem [2017] FWCFB 760; (2017) 263 IR 189 at [28].
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