George Haslett v SuperSealing Pty Ltd

[2016] FWC 1622

[2016] FWC 1622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Haslett
v
SuperSealing Pty Ltd
(U2015/13372)

COMMISSIONER WILSON MELBOURNE, 18 MARCH 2016

Application for relief from unfair dismissal.

[1] George Haslett was employed by SuperSealing Pty Ltd between 25 May 2003 and 23 September 2015.

[2] Mr Haslett’s brother, Thomas, is the proprietor of the business and his son still works in the business. Mr Haslett was dismissed in September 2015 for serious misconduct related to his drug use.

[3] Mr Haslett is otherwise a person protected from unfair dismissal. For the purposes of s.396 of the Fair Work Act 2009 (the Act), he has completed the minimum employment period; the Respondent is not a small business; and Mr Haslett’s dismissal was not a genuine redundancy.

[4] For the reasons I set out below, I am not persuaded that Mr Haslett’s dismissal was unfair within the meaning of the Act.

BACKGROUND

[5] As referred to above, Mr Haslett worked in his brother’s business, SuperSealing Pty Ltd (SuperSealing) for over 12 years and his son, Wade, is also employed in the business. Mr Haslett was employed as a “crack sealer”, working on public roads to repair cracks in the pavement. In the course of employment, he drove medium and heavy class vehicles; maintained and operated a crack sealing unit; and worked to repair and maintain pavement surfaces.

[6] The material before me includes the written submissions and statements of both parties and evidence from Mr Haslett, his wife, Belinda Haslett, and, on behalf of SuperSealing, Ben Reiter, the company’s Chief Executive Officer and Phil Graham, its Manager – People Welfare and Compliance.

[7] On the basis of the material provided by Mr Haslett and Ms Haslett, Mr George Haslett’s relationship with his brother, Mr Thomas Haslett, was acrimonious, at least in recent times. Although that is the case, it must have been better previously, not only for the reason that he and his son were employed in the business, but because Mr George Haslett was provided with a telephone for work-related and private use, and a motor vehicle, including for private use, and he lived in a house owned by his brother.

[8] In May 2015, Mr George Haslett’s son, Wade, was involved in a serious accident at work in Queensland and the Respondent’s evidence was that he was flown to Queensland at the company’s expense and provided with time off work and the payment of associated expenses. Between 20 May and 12 June 2015, Mr Haslett took leave associated with his son’s condition. 1

[9] In July 2015, SuperSealing’s Chief Executive Officer, Ben Reiter, had a meeting with Mr George Haslett about a number of matters. Mr Reiter’s witness statement includes reference to discussions with Mr Haslett around that time being about certain behavioural issues. Concerns emerged that Mr Haslett may be using non-prescription drugs.

[10] SuperSealing’s case includes that Mr Haslett admitted in a meeting with Mr Reiter on 21 July 2015 that “he had been taking illicit drugs and would not pass a drug test”. 2 In the same meeting, the parties agreed Mr Haslett should go on leave, which he did, with Mr Haslett being approved for leave until 3 August 2015.

[11] However when 3 August 2015 came, Mr Haslett did not attend for work. When they established contact with him, it is said by SuperSealing that the parties mutually agreed he would attend a drug test at the company’s request. 3 SuperSealing submits that work-related drug tests were arranged for the following dates;4

• 17 August 2015 – arranged but not attended;



• 18 August 2015 – arranged but postponed;



• 24 August 2015 – arranged but not attended;



• 31 August 2015 – arranged but not attended;



• 1 September 2015 – arranged and attended;



• 7 September 2015 – arranged but not attended;



• 14 September 2015 – arranged and attended;



• 21 September 2015 – arranged but not attended.

[12] The results for the drug tests taken on 1 and 14 September 2015 are both before the Commission. Both are urine drug screens and both show the detection of amphetamine type substances, but not the detection of other substances. 5 Mr Haslett puts forward about this period and earlier that he had been depressed, with his application for unfair dismissal referring to being under “family stress” and his witness statement elaborating about the period after his son’s accident;

“In this time I had no emotional support in helping me deal with my depression caused by my sons accident and my boss /brother continual harrassement of me and my family, my depression worsened over the coming weeks, due to my thoughts that after years of loyal service, sacrificing time to travel, missing events to make supersealing money, that no one in the company even bothered to visit my son or conatact him in Brisbane or offer me the emotional support I clearly needed. I was having trouble managing my depression and wasn’t offered any counselling or emotional support of any sort from my employer.

I stated to my ops manager and Ben that I needed to go back to work to keep myself busy and help with my depression it was even recommended by my doctor, I was refused, while I was still on unpaid leave I was asked to come in and take a drug test which when I was feeling up to it I had first stated to my manager Andrew Jordan that I would not be in for the test as I had a bad blow out in depression and taking drugs to compensate as it all seemed a personal attack on me, and I was asked again a week later and I agreed involuntarily did so even though I was on unpaid leave in my own personal time, I told my manager I had drugs in my system but he suggested I take one anyway it would show my enthusiasm and progress to returning to work “ 6 (original text)

[13] During the period in which the drug testing process was being undertaken, Mr Haslett had progressed from paid leave to unpaid leave. Initially he was on paid leave in July 2015, 7 however his paid entitlements had expired in early September 2015 and from that point onwards he had been on unpaid leave. In this regard, Mr Haslett’s witness statement on this subject includes the following;

“In August the other director of the company Ben Reiter contacted my wife as my phone number was with the company and I couldn’t use it to call and all my contacts were in it so my wife was the only contactable number, when he contacted my wife he told her that my annual leave had run out and that they could no longer pay me without me attending work, my wife stated to Ben that my depression was worse and I needed more time off, and that I was attending a doctor to deal with my medical state. Ben Reiter then procedded [sic] to tell my wife that they would wait a few more weeks and access that situation after my wife had continued with taking and organising the help I clearly required.” 8

[14] After receiving the results of the first drug test, conducted on 1 September and reported on 3 September 2015, Mr Haslett was warned in writing about the consequences of the matter. The company characterised it as serious misconduct and confirmed that he was stood down without pay as a result. The correspondence dated 3 September 2015 was explicit;

“As outlined in SuperSealing’s Drug & Alcohol Policy and in SuperSealing’s Employee Handbook, as acknowledged by you, producing a positive drug test is in breach of your employment conditions. This breach is determined as serious misconduct and is unacceptable in your current role as a Crack Sealer at SuperSealing.

Employees under the influence of drugs in the workplace put themselves and others at risk.

After considering this situation, you cannot attend work with illicit drugs in your system or in a condition that could put yourself or others at risk. Therefore you remain stood down from work, without pay, until such time that you can produce, to the satisfaction of SuperSealing, a negative drug test.

To continue your employment with SuperSealing, it is expected that your conduct must improve. It is also expected that additional drug tests may be required to be undertaken by you to verify your ongoing suitability for work.

If your conduct does not improve, (or if there are any further performance or conduct issues of any kind) further disciplinary measures may be taken, which may include the termination of your employment.

I request that you meet with Andrew again on Monday 7th September, at 9.30am at our office, to review your progress.” 9

[15] While required to meet with his work coordinator, Andrew Jordan, again on 7 September 2015, that meeting did not occur, with SuperSealing saying that Mr Haslett did not attend the scheduled meeting. 10 An alternative meeting was then arranged for 14 September 2015 which Mr Haslett did attend, and on that date he was taken by the company representatives for a second drug test, which he did not pass either.

[16] The SuperSealing representatives, Mr Reiter and Mr Graham, then say they arranged a further test on 21 September 2015 and I accept that such arrangements were made.

[17] The same representatives also gave evidence that in the days prior to 21 September 2015, Mr Haslett’s wife, Belinda, had conversed with them about a number of matters, including, they argue, putting forward on 18 September 2015 that he be terminated in order for the family to be able to access Centrelink payments. 11 Mr Haslett puts this exchange in a different light, stating as follows;

“On the following week 21st September I had organised to come in and have a 3rd test the following morning which Andrew Jordan booked in for me and I told them I would pass this time as I knew I had been getting more help for my problems, Ben reiter had previously stated to my wife that if I was to return to return to work after a negative test that conditons would apply, the night before I was supposed to go in for my 3rd test my wife received confirmation from ben reiter that supersealing though it would be in his words “best to terminate” even though my wife stated that I was wanting to come in for the test and find out what the conditions to pursue employment would be after the clean test.

Leading up to this test I sat around at home for 2 weeks wondering where to go next still not bing paid still on unpaid leave, I then asked Phil graham for a separation certificate if I was not going to be employed again to get some financial help he refused and stated on a phone call to my wife that “they did not want to terminate my employment that I just needed to pass a drug test and it would be ok”

I then the following day received my separation certificate stating that I was terminated due to serious misconduct in the work place, which I found astounding as I have not worked for 5mths due to the previously stated circumstances.” 12 (original text)

[18] Irrespective of these matters, after Mr Haslett did not attend for a third drug test, the company moved to dismiss him with a letter of termination being sent to Mr Haslett on 23 September 2015. In addition to terminating Mr Haslett’s employment, the correspondence notified him that SuperSealing would allow him access to certain benefits for a period after his termination and forego recovery of certain payments made to him, with its stating the following in its letter of termination;

“Dear George,

This is to notify you of our intention to terminate your employment from SuperSealing immediately, due to your serious misconduct.

Over the last few months, since we detected a change in your behaviour and you admitted to taking illicit drugs, we gave you the opportunity to rectify the problem.

As outlined to you previously, employees under the influence of drugs in the workplace put themselves and others at risk.

You have not been fit for work and have failed to supply a negative drug test since August 3rd 2015.

This is in breach of your employment conditions for your role as a Crack Sealer at SuperSealing. This breach is determined as serious misconduct and is unacceptable for your employment to continue.

On this termination, SuperSealing will provide you with a CentreLink Employment Separation Certificate.

SuperSealing has also assessed the additional benefits you have been receiving. Subject to review on the 6th November 2015, at this stage SuperSealing extends the following to you and your family to help provide a setting where you can overcome your drug problem.

1. SuperSealing will allow the ongoing and responsible use of the company owned, SsangYong vehicle, [registration number].

2. SuperSealing will continue to pay 100% of your weekly rent.

3. SuperSealing is not requesting any payment for monies currently owed by you, to SuperSealing, for outstanding loans, totaling $4,198.52

4. SuperSealing will also not be requesting reimbursement from you of $3,513.71 for annual and sick leave paid in advance of entitlement.

Any other benefits provided to you, including fuel cards and E-tags, will cease immediately.

Yours sincerely,
Ben Reiter
CEO” 13

LEGISLATION

[19] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is in the following terms;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[20] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.

[21] A consideration of the evidence presented in this matter leads to the following findings which will inform my determination of the application.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[22] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 14

[23] By the time he had been dismissed, Mr Haslett had only been intermittently at the workplace for some time.

[24] Firstly, he had been absent in order to attend the needs of his son who had been injured at work. Then he had encountered the health and drug use issues referred to above.

[25] The SuperSealing chronology records that Mr Haslett was absent between 20 May and 12 June 2015 to look after his son, which is described as personal/carer’s leave. He then returned to work in mid-June for one week; took a week’s annual leave; and then returned for three weeks work which lasted until 17 July 2015.

[26] There was then the discussion with Mr Reiter about “performance, absenteeism and behaviour issues” 15 and Mr Haslett was then sent off by agreement on leave.

[27] SuperSealing have a workplace Drug & Alcohol Policy dealing with the impairment of people at work by drugs and alcohol. 16 The Policy emphasises several matters, including the need for employees not to be under the influence of alcohol or drugs during working hours. It also appears to be founded on principles of mutual responsibility. For example, employees must ensure they are not impaired and are able to work safely. In relation to SuperSealing, the policy records that the company views “alcoholism and drug use as treatable illnesses” and that in “appropriate situations, where an employee’s performance and well-being has been adversely affected by alcohol or drug use, the Company may assist the employee via referral to treatment programs”.17

[28] The evidence allows a finding, which I make, that by mid July 2015 SuperSealing was concerned about Mr Haslett’s health and his use of non-prescription drugs that might affect his performance at work and his capacity to safely perform that work. It put in place a process with him by which he was asked to demonstrate his fitness for work through the taking of urine drug screens. While two tests were taken, with both recording detection of amphetamine type substances, in all there had been eight attempts to have Mr Haslett take tests. The two that were taken included the first that was rescheduled on three occasions and the second which was rescheduled once. By the time of the third arranged drug test, on 21 September 2015, SuperSealing apparently had run out of patience and instead decided to dismiss Mr Haslett.

[29] The wider context of this situation needing to be taken into account includes that Mr Haslett, when he was performing work, was required to use heavy machinery with clear implications for his ability to perform that work safely if affected by certain drugs. The context also includes SuperSealing’s Drug & Alcohol Policy which views alcoholism and drug use as a treatable illness, indicating that in appropriate situations where an employee’s performance and well-being has been adversely affected by alcohol or drug use SuperSealing may assist the employee with referral to treatment programs. The context also includes that following Mr Haslett’s failure to pass the drug screen taken on 1 September 2015, he was warned about the consequences of repetition and stood down from work without pay until he was able to pass a negative drug test, being one which indicated that non-prescription drugs were not within his system.

[30] The context also includes that there was a two week period between the first and second drug tests. There is no evidence before me that would suggest that that is an inappropriately short period in which to arrange a repeated drug test.

[31] Mr Haslett’s failure to attend the third arranged test on 21 September 2015, which was only seven days after the second test, plainly precipitated SuperSealing’s decision to dismiss him. Had he attended and passed that test he would likely not have been dismissed. However his failure to attend for the test was read by SuperSealing as being an intention on his part not to have a further test and they read into that intention a likelihood that Mr Haslett’s drug use continued and that he would not pass the test.

[32] Mr Haslett is critical of SuperSealing’s failure to offer him further assistance of the nature contemplated in the Drug & Alcohol Policy, such as referral to a treatment program. However, I consider that in the wider context of this matter that the conversations which had taken place between Mr Haslett and Mr Reiter since mid-July 2015 amount to a discharge by SuperSealing of such obligations as they may have under the Drug & Alcohol Policy to give life to the statement that the company “views alcoholism and drug use as treatable illnesses”.

[33] The period between the first dialogue on the subject of his non-prescription drug use and the time that Mr Haslett came to be dismissed is more than two months; during that time there appear to have been numerous conversations with Mr Haslett about the need to obtain assistance or to overcome the problems that he was experiencing. That time in itself is likely to be sufficient in order for the company to be able to argue that it has assisted Mr Haslett in the way contemplated by the policy.

[34] Further it would be an incorrect reading of the policy to take the view that it is entirely up to SuperSealing to offer or arrange assistance to employees. There are mutual responsibilities under the policy, with Mr Haslett holding responsibilities for his rehabilitation as well as SuperSealing. This is also not a situation where SuperSealing have taken a purportedly “zero tolerance” approach to a test indicating an employee may be affected by non-prescription drugs. It is not even a situation where the company has dismissed an employee after a failure to pass a second drug test.

[35] Instead, it is a situation where Mr Haslett was warned after the first failed drug test about the consequences of repetition for his future employment; was then sent for a second drug test which was failed; and then was given a third chance to demonstrate that he was fit for work, which he did not take up. It was only when Mr Haslett chose not to take up the third chance afforded to him that the company moved to dismiss him.

[36] In the overall context of the matter, I consider that this amounts to a valid reason for dismissal.

[37] There is no cogent evidence before me that Mr Haslett did not attend the third drug test as arranged because of matters discussed between his wife, Belinda, and Mr Reiter. As referred to above, both parties refer to a conversation between Ms Haslett and Mr Reiter on or around 18 September 2015, prior to the date arranged for the third drug test on 21 September 2015. Mr Haslett puts forward that Mr Reiter had said that it might be “best to terminate” Mr Haslett, whereas Mr Reiter puts forward that Ms Haslett had said to him that she sought her husband be terminated in order to access Centrelink payments. If this is an invitation on behalf of Mr Haslett for me to find that the product of the conversation was there was no longer a need to attend the third drug test on 21 September 2015, the evidence does not compellingly lead me to that point. Instead, I find that the Respondent’s expectation was that Mr Haslett present for the third drug test on 21 September 2015.

[38] While I have taken into account the evidence on the conversations between Ms Haslett and Mr Reiter on and around 18 September 2015, and the alternative versions put forward , I do not find that what is said about those matters amount to a reason for dismissal.

[39] Instead I find that the reason for dismissal was Mr Haslett’s failure to attend for the third drug test which was arranged for 21 September 2015 but which was not attended.

(b) whether the person was notified of that reason

[40] Mr Haslett did not find out about his dismissal at some time after it had taken effect. He was notified through a telephone call from Mr Reiter to Ms Haslett’s telephone on 22 September 2015 18 and he was then provided with the letter of termination on 23 September 2015, and the employment separation certificate records that employment ceased on that day as well.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[41] The Commission’s consideration of whether an employee has been given an opportunity to respond to an employer’s reason for dismissal is consequential to a finding there is a valid reason for dismissal. 19 In Wadey v YMCA Canberra20 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer;

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 21

[42] As referred to above, the reason Mr Haslett was dismissed was because he failed to present for a third drug test, having already failed two.

[43] The context of the evidence given on these matters does not allow a finding that Mr Haslett was advised of the employer’s reason for dismissal prior to the dismissal taking effect, and so was not directly given an opportunity to deal with the proposition that the employer was considering. Even so, the evidence allows a finding that, at the very least, Mr Haslett was under notice about the company’s view that being affected by non-prescription drugs amounted to serious misconduct and that an inability to show that he was no longer affected would lead to his dismissal. Further, the evidence allows a finding that by 21 September 2015 the potential departure of Mr Haslett from the workplace was under active consideration by both parties. On the one hand, Mr and Ms Haslett put forward that Mr Reiter had said it may be best to terminate him; and on the other hand Mr Reiter puts forward that Ms Haslett had suggested termination in order to access Centrelink payments.

[44] While I have not made findings directly on which of those alternatives is to be preferred, the two propositions indicate that the context to them is that both parties appear to be at one that Mr Haslett’s non-prescription drug use presented an impediment to his return to the workplace.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[45] There is no evidence that Mr Haslett was refused an opportunity to have a support person in discussions relating to his employment. Instead the evidence shows that Ms Haslett was actively engaged in advocating on behalf of Mr Haslett to the company representatives on his behalf.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[46] The evidence shows that Mr Haslett was warned on 3 September 2015 about the need to produce to the satisfaction of SuperSealing a negative drug test. He was warned that if his conduct did not improve further disciplinary measures may be taken which may include his termination of employment.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[47] The Employer Response Form filed by SuperSealing indicates that at the time Mr Haslett was dismissed it had 101 employees. There is no evidence that would suggest that the size of SuperSealing impacted on the procedures followed in effecting Mr Haslett’s dismissal.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[48] One of the two managers who gave evidence on behalf of the SuperSealing in this matter, Mr Graham, holds the title of Manager - People Welfare and Compliance. Further, material before me indicates that not only does SuperSealing have a Drug & Alcohol Policy, it also has an Employee Handbook which appears to set out the company’s expectations in terms of conduct and behaviour. This suggests to me that there was reasonably available to SuperSealing at the time it dismissed Mr Haslett expertise on human resource management matters.

(h) any other matters that the FWC considers relevant

[49] A matter which Mr Haslett asked me to take into account is the state of the relationship between he and his brother, Thomas Haslett, who is the owner of the business. Mr Thomas Haslett did not give evidence in these proceedings.

[50] The material filed by Mr George Haslett would indicate a hostile relationship between the two. Mr George Haslett invites me to take the view that his dismissal came about because of the state of that relationship. Notwithstanding such views on the part of Mr George Haslett, I am unable to make such a finding on the basis of the evidence before me. Instead the evidence, particularly in the form of the letter of termination as well as that given by Mr Reiter, would suggest that irrespective of the state of the relationship between the two brothers, there had been some consideration above the norm given to Mr George Haslett at the time the dismissal was put into effect.

[51] Ultimately, however, because of the findings I have made relating to the reasons for Mr Haslett’s dismissal, and other matters, the state of the relationship between the two is not a factor that influences my decision in this matter.

[52] Having considered all of the evidence and material provided by the parties to the Commission, I do not consider that Mr Haslett has been unfairly dismissed.

[53] A valid reason for his termination has been put forward by SuperSealing, which I accept. The process employed by SuperSealing in dealing with him from the time of the first drug test until the time of the dismissal was relatively nuanced to his particular needs and was certainly patiently executed. While there was not a final conversation in which the possibility of a dismissal was put to Mr Haslett in order that he respond, I consider that there was sufficient discussion between the company representatives with both he and his wife in which the need to attend a further drug test was put forward and which enabled both parties to express such views as they may have had for the company to take account.

[54] As a result of my finding that Mr Haslett has not been unfairly dismissed, his application will now be dismissed and an Order to that effect will be issued at the same time as this Decision.

COMMISSIONER

Appearances:

Mr G Haslett and Ms B Haslett for the Applicant.

Mr B Reiter and Mr P Graham for the Respondent.

Hearing details:

2016.

Melbourne:

27 January.

 1   Exhibit R4, Respondent’s Bundle of Documents, Document 3.

 2   Exhibit R3, Witness Statement of Ben Reiter.

 3   Exhibit R1, Respondent’s Outline of Submissions, [4c.2].

 4   Ibid [4c.3]-[4c.9].

 5   Exhibit R4 Documents 4 and 6.

 6   Exhibit A2, Witness Statement of George Haslett.

 7   Exhibit R4 Document 3.

 8   Exhibit A2.

 9   Exhibit R4 Document 5.

 10   Exhibit R1 [4c.5].

 11   Exhibit R4 Document 3.

 12   Exhibit A2.

 13   Exhibit R4 Document 7.

 14   Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

 15   Exhibit R4 Document 3.

 16   Ibid Document 1.

 17   Ibid.

 18   Exhibit R4 Document 3.

 19   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

 20 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].

 21   Ibid.

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