Glamorgan Spring Bay Council v Adam Mills
[2025] FWCFB 69
•16 MAY 2025
| [2025] FWCFB 69 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Glamorgan Spring Bay Council
v
Adam Mills
(C2025/698)
| VICE PRESIDENT ASBURY DEPUTY PRESIDENT HAMPTON DEPUTY PRESIDENT O’NEILL | BRISBANE, 16 MAY 2025 |
Appeal against decision [[2025] FWC 116] of Deputy President Clancy at Melbourne on 15 January 2025 in matter number U2024/7491 – permission to appeal denied – observations made about consequences of the decision and order under appeal.
Background
The appellant, Glamorgan Spring Bay Council (Council) applies for permission to appeal, and if permission is granted, to appeal the decision[1] of Deputy President Clancy issued on 15 January 2025 (Decision) concerning the dismissal by the Council of the Respondent, Mr Adam Mills. The Deputy President heard Mr Mills’ unfair dismissal application made under s.394 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President held that there was a valid reason for dismissal but that it was harsh and unreasonable. Further, the Council was ordered[2] to reinstate Mr Mills to his position, maintain the continuity of his employment and provide back-pay (Order). The Order is also contested in this matter.
We observe that the Order was stayed by consent on the basis of an undertaking by the Council that it will continue to pay Mr Mills an amount equivalent to his usual wages pending the outcome of the appeal in this matter.
The Council is a local government body in Tasmania, situated in Triabunna on the central east coast of the State.
Mr Mills was employed as a full-time Works Officer. That position required him to maintain roads, footpaths and parks, fix signs, fell trees, and clear road verges. To do so, Mr Mills was frequently required to operate plant and machinery, including with a manual transmission, and to traverse uneven terrain on foot.
In August 2020, Mr Mills suffered a serious injury to his left foot whilst working for the Council. The resulting fractures left him with chronic pain; however, he had returned to his role as a Works Officer and performed the substance of that role despite ongoing discomfort and some pain. His pain relief has varied over time and has not always been effective. Mr Mills was prescribed medicinal cannabis in June 2023 to assist in pain management. Mr Mills informed the Council of this and was permitted to continue to work on the basis that a letter from his treating General Practitioner advised that it was safe to do so.
Mr Mills was initially prescribed cannabidiol cannabis (CBD). It is generally accepted that CBD does not have the same psychoactive symptoms that are associated with deltra-9-tetrahydrocannabinol, or THC, and does not affect the performance of safety critical work. By the time of a random worksite drug test conducted on 14 February 2024, Mr Mills was taking the medicinal cannabis flowers ‘Cornerfield T21 night flower’ and ‘Kind Medical Taurus 25:1’, both of which contain THC. Mr Mills did not notify the Council of the change to his medication and more relevantly, that he had commenced taking medicinal cannabis containing THC. We observe that it was this failure that the Deputy President ultimately found represented a valid reason for Mr Mills’ dismissal.
The random worksite drug test resulted in Mr Mills returning a non-negative result for THC. He was stood down from his employment pending further inquiries. The Council’s Alcohol and Other Drugs Policy (Policy) relevantly provided that “workers must not have any OTC (over the counter) Drugs and/or Prescription Drugs present in their system at any time during which they are at work and/or carrying out work in any quantity which renders them unfit for work and/or affects the workers ability to perform work safely.”
The Council sought additional information from Mr Mills’ treating doctors. Then, with Mr Mills’ agreement, the Council referred Mr Mills to an expert Occupational Physician, Dr McCartney, for an assessment. There is a dispute about the scope of Dr McCartney’s report, which was issued on 8 May 2024. We will return to this aspect, however amongst other findings and observations, Dr McCartney concluded that Mr Mills could not safely perform his work for the Council whilst taking the medication containing THC. Dr McCartney also indicated that it may be appropriate to re-assess Mr Mills’ fitness at a later stage. The suggested basis for that re-assessment was that Mr Mills find an effective alternative treatment, confirm that he is no longer taking THC, report that his symptoms were being managed on an alternative treatment, and return a negative drug test.
The Council took the view that it was not possible to make adjustments to enable Mr Mills to perform his role safely and that there were no alternative positions for Mr Mills to perform. Mr Mills was informed that the Council was considering terminating his employment.
The Council requested that Mr Mills identify any alternative pain medication or treatment which he would be willing to take or engage in. Mr Mills attended an appointment with his treating doctor on 6 June 2024 but was unable to obtain detailed advice about any alternatives. On 12 June 2024, Mr Mills informed the Council that he had not yet been provided with any alternative options for him to control his pain other than morphine which he did not wish to take. Mr Mills indicated that he was prepared to stop taking medication altogether and “push through the pain”. Mr Mills also sought further time to explore pain management options. In the lead up to that point it was also contended on Mr Mills’ behalf that providing him with non-safety critical duties was an option and would afford him the ability to return to work while collaborating with his treating doctor in relation to alternative treatment. It was also suggested by his representative that Dr McCartney’s report provided the pathway of pursuing alternative pain management that did not involve THC, including a subsequent assessment of fitness for duty and resumption of full duties, with the Council having the capacity to make temporary, reasonable adjustments in the meantime. It was further contended on Mr Mills’ behalf that in these circumstances, terminating his employment would be premature and unreasonable.
We observe that there was some additional medical evidence concerning Mr Mills, including from Dr Doig, a Specialist in General Orthopaedics and Trauma, and a workers compensation certificate of capacity completed by Dr Johnson. This material was also considered by the Deputy President in the Decision.
On 12 June 2024, the Council terminated Mr Mills’ employment on the basis that he was unable to safely perform the inherent requirements of his role “now. or within a reasonable time period. There are no reasonable adjustments that would enable [Mr Mills] to perform [his] role.”[3] The termination letter also recorded Mr Mills’ contention that the Council should allow for a further 4 weeks to pass to enable him to consult with his doctor about alternative pain medication and the rejection of that notion, and stated the Council’s conclusion that there was no possibility of alternative roles.
In essence, the Deputy President concluded that Mr Mills’ failure to advise the Council of the change in medication to one that included THC was a breach of the Policy and represented a valid reason for dismissal. However, he found that in Mr Mills’ circumstances, the dismissal was harsh and unreasonable due in part to the availability of other reasonable options and the impact of the dismissal, and that reinstatement with associated orders was appropriate.
The appeal seeks to rely upon two grounds. First, that the Deputy President erred in failing to find that Mr Mills was unable to safely perform the inherent requirements of his position. Second, that he erred in failing to consider the risk that reinstating Mr Mills to his position will exacerbate his injury. The Council contends that both errors arise in circumstances where the Deputy President mistook the facts as established by the medical evidence.
This matter was listed to hear the parties on both the permission to appeal and the appeal generally and was heard in person on 13 March 2025.
We have ultimately decided, for the reasons that follow, not to grant the Council permission to appeal the Decision. We have however, made certain observations about the consequences of the reinstatement order, given the particular circumstances evident in this matter.
The Decision under appeal
We have summarised the gravamen of the Decision above. To assess the grounds of appeal it is however appropriate to more fully consider the findings and basis for the conclusions reached in the Decision, particularly with respect to the medical evidence when applying the merit considerations in s.387 and the assessment of the remedy under s.390 of the Act.
The Deputy President considered the evidence of Dr McCartney in the following terms:
“[13] The Respondent replied on 26 March 2024, acknowledging that Mr Mills had been performing his duties without any obvious concerns but outlining that because of the results of the 14 February 2024 drug test, it required an understanding of whether Mr Mills could safely perform his duties as a Works Officer and if not, whether reasonable adjustments could be made so that Mr Mills could perform his role in a manner that was safe for him and others. In particular, the Respondent outlined its desire to obtain an understanding as to whether the presence of THC would impact the ability of Mr Mills to safely perform his duties. Ultimately, Mr Mills provided his consent to undergo an examination and for Dr McCartney to provide the Respondent with a written report and engage in discussions related to the findings. On 10 April 2024, Mr Mills attended a telehealth assessment with Dr Hurst from Resile Pty Ltd, accompanied by Mr Ken Richardson from the ASU and Ms Sinclair. Following this, Dr McCartney prepared a report dated 8 May 2024 which was provided to the Respondent.
[14] Commenting on the effect of the use of medicinal cannabis on Mr Mills’ ability to undertake the inherent requirements of his role as Works Officer, Dr McCartney stated:
“Despite not reporting any side effects Mr Mills is still at an increased risk of impairment and adverse events when taking medicinal cannabis and therefore, from the information provided and on the balance of probabilities, he is not fit to perform safety critical work while using medicinal cannabis for his chronic pain condition.
From the information provided Mr Mills in his role as a works officer is required to undertake safety critical tasks (e.g. operating and driving heavy vehicles) and therefore would not be able to safely perform all the inherent requirements of his role while using medicinal cannabis.”
[15] Dr McCartney expressed the opinion that without effective treatment for Mr Mills’ chronic pain, Mr Mills might be unable to perform activities of daily living effectively, which could in turn impact his ability to work as a Works Officer. Having outlined that Mr Mills was at an increased risk of impairment and adverse events if working with drugs in his system, Dr McCartney opined that Mr Mills was not currently fit to safely perform safety critical work and this impacted his fitness to perform the Works Officer role. Further, Dr McCartney detailed:
“Reassessment for fitness for work may be appropriate when and if:
• Mr Mills finds effective alternative treatment and it is confirmed he is no longer taking THC
• Mr Mills reports his symptoms are managed on alternative treatment
• Mr Mills has a negative drug test.”[4]
(Footnotes omitted)
In considering whether there was a valid reason for dismissal, the Deputy President considered the Council’s alternative contention, beyond the contended breach of the Policy, about Mr Mills’ capacity in the following terms:
“[35] Dr McCartney completed his report in relation to Mr Mills a number of months after the random drug test on 14 February 2024. The opinion he expressed was that even though Mr Mills reported that he was experiencing no side effects from taking the medicinal cannabis, he is still at risk of impairment and adverse events when using medicinal cannabis and, “from the information provided and on the balance of probabilities”, was not fit to perform safety critical work inherently required in his role of Works Officer. Dr McCartney also confirmed, however, that there is no current globally accepted definition of impairment nor agreement as to how to accurately measure it, and he opined that the mere presence of THC in blood or oral fluid THC does not reliably predict impairment. That there has been and remains no direct scientific test for impairment arising from the use of cannabinoids has long been observed by this Commission, and the problem faced by employers of how to properly assess whether an employee is impaired continues. In addition to Mr Mills’ denial of any side effects, it would seem Mr Mills worked without incident for the period during which he was taking medicinal cannabis. There was no evidence from any employee of the Respondent that Mr Mills appeared to be unfit for work while carrying out his duties, or unable to perform his work safely, either prior to or on 14 February 2024. On the contrary, Mr Darren Smith gave evidence that Mr Mills had fulfilled a his role to all the requirements.
[36] The Respondent appeared to advance, as an alternative submission, that the combination of the advice from Dr McCartney that Mr Mills needed to find effective, alternative treatment that managed his symptoms before he could be reassessed as being fit for work and the advice it had received from Mr Mills that there were no alternative treatment options, supported the conclusion that Mr Mills was not fit to safely perform the inherent requirements of his role.
… …
[38] I am not persuaded that this evidence from Dr McCartney rose to the level of asserting that it would not be safe for Mr Mills to work in his role as a Works Officer without effective pain management. Dr McCartney’s opinion was that without effective treatment, Mr Mills may be unable to perform activities of daily living effectively, which in turn could impact his ability to work in his role as a Works Officer. Further, at the hearing, Dr McCartney conveyed the following recommendation:
“…And that re-assessment for fitness for work might – may be appropriate when and if Mr Mills finds effective alternative treatment? That is my recommendation: if he can find effective treatment without medication that has such concerning side effects when it comes to performing safety-critical work safely, then re-assessment on fitness for work would be appropriate. I can’t give an opinion on what I would think then because then I’d be looking in much more detail about the foot, the ankle and whatever medications Mr Mills may be put on – any side effects, et cetera. So I wouldn’t want to give an opinion now as to whether I would think he was fit for work. I would have to do another assessment and look at all of that and get something down – someone to do a very specific functional assessment. But it is my opinion that if he was no longer taking medicinal THC, and reports his symptoms are controlled and shows he has a functional capability of doing the job safely then it is likely the opinion on fitness for duty would be different to the one offered in this report, which is based – predominantly addressing the THC issue”
(my emphasis)
[39] Having regard to the nature of the evidence before me and the prevailing circumstances associated with testing for impairment, I am reticent about making a finding as to whether Mr Mills was unfit for work or unable to perform his work safely. However, regardless of the Respondent’s purported reason for Mr Mills’ dismissal and contentions in support, the Commission must decide for itself whether there were circumstances that constituted a valid reason to terminate the employment, not whether the reason relied on by the employer was a valid reason.”[5]
(Footnotes omitted)
After recognising the particular personal and employment circumstances of Mr Mills, and in effect, acknowledging the importance of alternative pain management options in the decision to dismiss him, the Deputy President found:
“[62] My view that a final position in relation to alternative pain treatment had not been reached as at 12 June 2024 is supported by the reference in the Termination Letter to Mr Richardson having suggested that Mr Mills had not been given reasonable time to consider alternative pain medication and that the Respondent should allow a further four weeks for Mr Mills to consult with his doctor about alternative pain medication.
[63] In summary, I am satisfied that Mr Mills acted without malevolence in failing to comply with the Notification Requirement and I am not persuaded that the Respondent gave Mr Mills sufficient time to explore other pain treatment or that it gave fulsome consideration to the purposes of the Policy and the options it made available for consideration and application. I consider that in its haste to terminate the employment of Mr Mills, the Respondent failed to give consideration to the options of an EAP tailored to his circumstances and/or a return to work program and/or a rehabilitation program.
[64] Nor was the Respondent open to giving Mr Mills the option of resuming his duties while not using medicinal cannabis, despite the desperation and determination of Mr Mills to keep his job, even if it meant carrying out his duties in physical discomfort.
[65] Mr Mills impressed as a valuable and dedicated worker with a no-nonsense and can-do attitude to his work. Mr Mills also impressed as a father devoted to the welfare of his children and fervent about instilling in them good values. Moreover, Mr Mills was the personification of the fundamental importance a person’s job has to their economic independence and sense of self-worth and dignity. Mr Mills was deserving of a second chance and the ongoing support and understanding of his employer, not termination with immediate effect. Having regard to the circumstances of this case, I consider the s.387(h) matters weigh strongly in favour of a finding that Mr Mills’ dismissal was harsh and unreasonable.”[6]
In terms of reinstatement as ultimately ordered by the Deputy President, he dealt with the medical evidence and other considerations and concluded:
“[68] A basis for reinstatement being considered inappropriate are circumstances where the employee is incapacitated by illness or injury, although the weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case. The Respondent sought to emphasise that as at the date of the examination conducted by Dr Doig in July 2024, Mr Mills was still taking the medicinal cannabis. It emphasised that Dr Doig had reported (when responding to the question “What if any treatment has been the most effective in aiding Mr Mills’ recovery?”) that the medicinal cannabis still appeared to be assisting Mr Mills in his pain control. Based on this, the Respondent submitted reinstatement is not an appropriate remedy because Mr Mills is not fit to perform safety critical work while taking medicinal cannabis, and there was no evidence that his symptoms were currently being managed with an effective alternative treatment. The Respondent also submitted that Dr Doig’s opinion was that Mr Mills could undertake work with significant restrictions but that this was predicated on his pain being controlled with medicinal cannabis.
[69] I have considered and rejected these propositions regarding Mr Mills’ fitness for work above at [36]-[38] and I have noted that when it was put to Mr Mills at the hearing that he was still taking medicinal cannabis, he answered “Yes. I do now and again, yes because I’ve got no reason to stop. Do I? Like you’ve just sacked me. Like – but I can stop. I can stop like that for my job.”
[70] The Respondent did not squarely put that reinstatement was inappropriate on the basis that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship. Regardless, any such submission must be soundly and rationally based. Mr Mills’ testimony indicated that he loved his job and was highly motivated to return to work. He submitted he had significant, demonstrated work capacity and suggested there would be no issues integrating back into the workplace because he would just do his job. The onus of establishing a loss of trust and confidence rests on the party making the assertion. Mr Darren Smith did not proffer that he had lost confidence in Mr Mills.
[71] Having regard to Mr Mills’ skills, experience and ability, the Respondent argues there are no alternative duties or roles available for him to perform and advised that his former role of Works Officer had been filled by someone working as a casual employee. As to the latter consideration, it has long been established that the fact an employer has filled the position previously occupied by the dismissed employee will rarely, of itself, justify a conclusion that reinstatement is not appropriate.
[72] I am persuaded that Mr Mills’ job is so important to him that he would cease taking medicinal cannabis if reinstated, “push through the pain” and fulsomely explore alternative pain management options. I note that after Mr Mills’ dismissal, Dr Graeme Doig, specialist in General Orthopaedics and Trauma, conducted a medico-legal assessment of Mr Mills on 26 July 2024. Dr Doig did not consider Mr Mills to be physically incapacitated, albeit he acknowledged Mr Mills experienced chronic pain and suggested a number of physical restrictions. The suggestions made by Dr Doig in relation to Mr Mills’ capacity for work were couched in terms such as “ideally”, “try and avoid” and “may require.” The Respondent purported to rely on a Workers Compensation Certificate of Capacity completed by Dr Johnson but this was a curious document because it was issued on 9 August 2024 and referenced a consultation date of 2 May 2024. In any event, as that consultation predated Dr Doig’s, I have preferred Dr Doig’s report, and it has not persuaded me that Mr Mills is currently so incapacitated that he could not fulfil the inherent requirements of his role. Having regard to the circumstances and material before me, I consider that the reinstatement of Mr Mills to the Works Officer position in which he was employed immediately before the dismissal is appropriate in this case and that such an order under s.391(1) of the Act should be made.”[7]
(Footnotes omitted)
Permission to appeal principles
An appeal under s.604 of the Act is an appeal by way of rehearing; however, the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker.[8] Generally, an appellant must obtain the Commission’s permission in order to appeal. The present matter is an appeal from a decision made under Part 3-2 of the Act, which concerns unfair dismissals, and is therefore subject to s.400 of the Act. Section 400(1) states that the Commission “must not” grant permission to appeal unless it considers that it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a “significant” error of fact. The Federal Court has described the requirements in s. 400 as “stringent”.[9]
A decision as to whether the public interest test is met is a discretionary one involving a broad value judgment.[10] Considerations that may attract the public interest include where the matter raises issues of importance and general application, where there is a diversity of decisions at first instance, where the decision manifests an injustice or the result is counterintuitive, or where the legal principles applied appear disharmonious with other decisions on similar matters. It will rarely be appropriate to grant permission to appeal unless there is at least an arguable case of appealable error, because an appeal cannot succeed in the absence of such an error. However, the fact that a member has made an error is not necessarily a sufficient basis to grant permission to appeal.
The Council contended that the decision at first instance manifests an injustice and is counter-intuitive in that it requires the reinstatement of an employee who, on the evidence, does not have the capacity to safely perform his substantive role and/or is at risk of exacerbating his existing injury. Further, it contends that the Decision manifests an injustice because it has resulted in a reinstatement that places Mr Mills’ occupational health and safety at risk, with consequential legal and reputational risks for the Council. As to the public interest, the Council contends that it is not in the public interest for an outcome of that nature to stand with the Commission’s “imprimatur”.
Mr Mills contended that the present case meets neither the public interest test, nor the requirement for a significant error of fact as required by s.400(1) of the Act. Further, he contends that the appeal merely seeks to relitigate the factual findings made at first instance simply because the Council alleges that different conclusions should have been drawn from the evidence. Finally, Mr Mills contends that the matter raises no issues of importance or general application, and turns entirely on its own facts. He submits that permission to appeal should not be granted.
In this case it is necessary to explore the grounds of appeal to determine whether permission to appeal should be granted.
The grounds of appeal
As originally lodged the grounds of appeal raised three matters. Of these, the following two were pressed by the Council during the hearing:
The Deputy President erred in failing to find that Mr Mills did not have capacity to safely fulfil the inherent requirements of his role.
In finding that reinstatement was appropriate, the Deputy President erred in failing to take into account the risk that reinstatement will cause an exacerbation of Mr Mills’ injury.
These two grounds are clearly related and rely for the most part on the Deputy President’s assessment and treatment of the medical evidence.
Submissions by the parties
The Council
The Council contends that the evidence establishes, in two separate respects, that Mr Mills is unable to safely fulfil the inherent requirements of his role: first, that Mr Mills is unable to safely perform his role while taking (pain management medication containing) THC; and second, that Mr Mills is unable to safely perform his role by reason of his injury. By declining to find that Mr Mills was incapacitated, the Deputy President mistook the facts in the manner identified in the third limb in House v King.[11]
In relation to the first proposition, the Council contends that Dr McCartney’s opinion was uncontradicted. His opinion was that Mr Mills was unable to safely perform his role with THC in his system and this was based on the following considerations:
· THC produces “adverse side effects” including “sedation, dizziness, anxiety convulsions and impairment of thought, memory, and concentration”; those side effects will depend on the individual and the dose taken; Dr McCartney was aware of the dose prescribed to Mr Mills; while Mr Mills had not reported any significant adverse effects, he had reported that the THC “helps to forget” the pain, which in Dr McCartney’s view “may indicate the known side-effect of impairment of thought, memory, and concentration”;
· according to the Royal Australian College of General Practitioners, THC impairs driving performance and can increase crash risk, and patients using THC products should avoid driving and other safety-sensitive tasks such as operating machinery; and
· an extensive body of research literature describes the increased crash risk associated with THC.
The Council further contends that the Deputy President erred at [35] of the Decision when he did not make the finding about Mr Mills’ capacity “called for by Dr McCartney’s opinion” on the following basis:
· The fact that there is no accepted definition of, or direct test for, impairment does not gainsay Dr McCartney’s conclusion. It merely points to difficulties in assessing impairment at any one point in time. Mr Mills had not been dismissed because he had attended for work while impaired on a specific occasion. The question here is whether the Council’s apprehension of a future risk of impairment was sound, defensible and well-founded. That fell to be answered on the assumption that Mr Mills would continue to take THC and that the risk he would attend for work while impaired would therefore recur on each and every shift that he performed. Further, because Mr Mills’ role was safety-critical, even a relatively moderate impairment would be unacceptable due to the potentially catastrophic consequences of an accident.
· The Deputy President relied on Mr Mills’ denial of having experienced side effects from the THC. But the Deputy President failed to take into account that Mr Mills did appear to have described certain side effects to Dr McCartney. Mr Mills reported to Dr McCartney that THC helped him to “forget the pain”, which Dr McCartney observed “may indicate the known side-effect of impairment of thought, memory, and concentration.” Dr McCartney’s observations in that respect are omitted from the Decision.
· The fact that there was no evidence from any employee of the Council that Mr Mills appeared to be unfit for work while carrying out his duties, and that Mr Smith had given evidence that Mr Mills had fulfilled his role to all its requirements, also cannot contradict Dr McCartney’s conclusion. An employee may well appear, from the outside, to be unaffected by THC. That does not mean that it is safe to operate safety-critical machinery. The adverse side effects identified by Dr McCartney as associated with THC, including impaired thought, memory and concentration, are internal phenomena and are capable of manifesting without necessarily being visible to others.
On the above basis, the Council contends that its apprehension of a risk that Mr Mills would, in circumstances of his ongoing consumption of THC, present for work under impairment in the future was sound, defensible and well-founded. Further, once that is accepted, it follows that the Deputy President mistook the facts by failing to find that Mr Mills was unable to safely perform the inherent requirements of his role. That was a significant error of fact within the meaning of s.400(2) of the Act because it formed the basis on which the Deputy President rejected the valid reason on which the Council relied and because it influenced the Deputy President towards a finding that an order for reinstatement was appropriate.
As to the second proposition concerning Mr Mills’ inability to safely perform his role by reason of his injury, the Council contends that:
· The evidence establishes that Mr Mills is not fit to perform his role safely even if he stopped taking medicinal cannabis because the injury to his foot prevents him from safely performing his role without significant restrictions. The assessment of whether an employee is capable of fulfilling the inherent requirements of their role focuses on their substantive role and not some modified role involving restricted duties. “Capacity” under section 387(a) concerns the employee’s ability to do the work he or she is employed to do.
· Mr Mills tendered a report of Dr Doig dated 4 September 2024. Dr Doig assessed Mr Mills on 26 July 2024. Dr Doig’s opinion was as follows:
(a)Mr Mills had not wholly or substantially recovered from the effects of his foot injury in 2020;
(b)Mr Mills will not wholly or substantially recover from that injury in the future;
(c)Mr Mills will develop worsening, post-traumatic osteoarthritis of his foot as he ages with chronic pain which will have to be controlled;
(d)Mr Mills is unable to drive a manual transmission;
(e)Mr Mills would “ideally” have lifting, pushing and pulling restrictions and “should try and avoid” walking on uneven ground and may require breaks from prolonged standing and walking.
· Dr Doig’s assessment was also conducted at a time when Mr Mills had been prescribed, and was taking, medicinal cannabis. Dr Doig noted that the cannabis was assisting Mr Mills with pain control. His identification of restrictions therefore assumed that Mr Mills’ pain would be managed through the use of THC. This is critical to understanding Dr Doig’s report because he considered that the chronic pain caused by Mr Mills’ injury “will have to be controlled.”. If it is instead assumed that Mr Mills would cease using THC there is even less warrant to treat the restrictions he proposed as somehow optional.
· It is also no answer that Mr Mills had worked as a Works Officer for some time after suffering his foot injury and prior to the dismissal. His injury was not stable. It was deteriorating over time. As Dr Doig noted, “Mr Mills will develop worsening, post-traumatic degeneration at the tarso-metatarsal articulations of the left mid-foot as he ages, resulting in worsening pain, swelling and functional restrictions”. It follows that the need for restrictions to Mr Mills’ role was likely to increase over time.
· Finally, the surrounding medical evidence supports the conclusion that Mr Mills is only partially capable of fulfilling his role. In particular, Dr Johnson, who was Mr Mills’ treating doctor, certified on 2 August 2024 that Mr Mills had no capacity for any work from 2 May 2024 to 2 November 2024. The Deputy President “preferred Dr Doig’s report” over this certificate of capacity. But this erroneously assumed that the certificate conflicted with Dr Doig’s report, when in fact both pointed to the same general conclusion. Dr Johnson’s certificate observed that Mr Mills required modifications to sit, stand/walk, bend, squat, kneel, lift, use his left foot and drive or operate heavy machinery. It also observed that Mr Mills could not walk up stairs or climb, even with modifications. Those observations are broadly consistent with the restrictions identified in Dr Doig’s report. This supports the conclusion that Dr McCartney was not merely suggesting optional restrictions but instead was opining that without those restrictions Mr Mills did not have full capacity for his role. Likewise, Dr McCartney opined that “duties that involve manual handling are, on the balance of probabilities, likely to worsen his symptoms of chronic pain.”
The Council submits that by failing to find that Mr Mills lacked the capacity to perform the full scope of his inherent requirements, the Deputy President mistook the facts. That is, the evidence establishes that Mr Mills’ capacity is only partial. Moreover, because of the degenerative nature of his injury, there is no meaningful prospect of recovery. The Deputy President’s error of fact was significant in that it was the primary basis on which the Council’s opposition to reinstatement was rejected, and because if the Deputy President had not so erred it would have followed that the Council had a further valid reason for Mr Mills’ dismissal.
In relation to the notion that Mr Mills gave evidence that he was prepared to stop taking medicinal cannabis, the Council observed that although the Deputy President did not consider that contention in the context of the valid reason analysis, the Deputy President’s finding that Mr Mills “would cease taking medicinal cannabis if reinstated” was material to the reinstatement order. It contested that finding on two bases as follows:
· the evidence is that Mr Mills had not stopped taking medicinal cannabis; and
· even if Mr Mills did stop taking THC, that would not change the unfortunate reality that he remains only partially capable of safely performing his required duties. Given that Mr Mills has not been able to identify any alternative pain management, his only options are to either continue taking THC or to suffer the pain caused by the unavoidable use of his left foot at work, neither of which, on the medical evidence, is safe.
As to the second ground of appeal, the Council contends, largely on the same basis of the contended errors outlined above, that the Deputy President erred by failing to consider the risk that reinstatement would cause an exacerbation of Mr Mills’ injury. The Commission ordered that Mr Mills be reinstated to the Works Officer role. Given the nature of the work involved, the Council submits that there is no manner in which Mr Mills can perform his role that does not expose him to the very duties that the medical evidence warns against. That evidence establishes an obvious risk that if Mr Mills is reinstated to his position, he will suffer an exacerbation of his foot injury. It is not open to the Council to reinstate Mr Mills to some varied role, or an approximation of his position. In light of High Court authority, it follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination.
Further, the Council contends that this is not a question of Mr Mills simply “pushing through the pain”. Mr Mills might be prepared to tolerate physical pain to regain his position. But it would be unacceptable, both for Mr Mills and the Council, for his injury to be worsened or exacerbated because he is required to perform duties that the medical evidence has established that he cannot perform or should avoid. Yet those duties are unavoidable features of his role. The reinstatement order therefore places the Council in an invidious position. It is required to return Mr Mills to his duties but it is also obligated under section 19(1) of the Work Health and Safety Act 2012 (Tas) to ensure, so far as is reasonably practicable, the health and safety of its employees. Reinstating Mr Mills will expose him to a risk of physical harm and the Council to a consequent risk of liability arising from its obligation to provide a safe workplace for Mr Mills and others.
Finally, the Council contends that these risks were obvious on the material before the Commission and were not considered by the Deputy President. That constitutes a failure to take into account a consideration that was relevant to the reinstatement analysis, being an error of the House v King kind.
Mr Mills
Mr Mills contends, in effect, that the Council was running an alternative case to that determined by the Deputy President at first instance.
As to appeal ground 1, Mr Mills contends that the Deputy President did not err in declining to make the findings sought by the Council, or in the alternative, any error is not significant. This applies to both elements now contended on this appeal ground relating to Mr Mills’ capacity to safely perform the requirements of his position.
In relation to Mr Mills’ ability to perform his role while taking THC, he contends that at first instance, the Appellant relied solely on the evidence of Dr McCartney in support of its contention that Mr Mills was unable to safely perform his role while he was using medicinal cannabis containing THC. The Deputy President considered the report of Dr McCartney in detail, along with Dr McCartney’s oral evidence, and declined to make the findings contended for by the Appellant. The substance of the Council’s complaint in relation to this ground is not that the Deputy President misunderstood Dr McCartney’s evidence, but rather that he ought to have accepted the conclusions reached by Dr McCartney. This is not a basis for any finding of error.
Further, Mr Mills contends that the Deputy President noted the caution recommended by the Full Bench in Sydney Trains v Goodsell that findings about whether an employee was impaired at work should be made based on clear and cogent evidence. With this caution in mind, the Deputy President then considered the limitations of Dr McCartney’s report, which included:
· Dr McCartney completed his report in May 2024, several months after the random drug testing of Mr Mills on 14 February 2024;
· Dr McCartney’s opinion that Mr Mills was not fit to perform safety critical work was made ‘from the information provided’ and ‘on the balance of probabilities’. Implicit in this limitation of the ‘information provided’ is that Dr McCartney did not personally examine Mr Mills. He relied upon information provided by Dr Helena Hurst in April 2024 who in turn only conducted an assessment via ‘teleconsultation’, along with documentary material provided by the Council;
· Mr Mills reported that he experienced no side effects from taking medicinal cannabis. Contrary to the Appellant’s submission, Mr Mills’ report to Dr Hurst (who then relayed the information to Dr McCartney) that THC helped him to ‘forget the pain’ is not evidence that Mr Mills did experience side effects. Dr McCartney’s observation that this statement ‘may indicate the known side-effect of impairment of thought, memory, and concentration’ is speculative. Dr McCartney did not opine that Mr Mills was actually suffering from any side effects. He did not even examine Mr Mills. While the Deputy President did not expressly refer to Dr McCartney’s observations in this respect, it is not the case that every piece of evidence is required to be referred to;
· Dr McCartney confirmed that there is no current globally accepted definition of impairment nor agreement as to how to accurately measure it, and that the mere presence of THC in blood or oral fluid THC does not reliably predict impairment. Dr McCartney’s acknowledgment of this limitation is stated in the ‘Opinion’ section of his report; and
· It was uncontested that Mr Mills worked without incident, and fulfilled his role to all the requirements, for the period during which he was taking medicinal cannabis. This included the period in which he was taking THC, from approximately August 2023 to 14 February 2024.
In relation to Mr Mills’ ability to perform his role without taking medication which included THC, he contends that at first instance, the Council appeared to advance an alternative basis for the submission that Mr Mills was unable to safely perform his role without effective alternative medication due to his injury. The Council initially relied upon Dr McCartney’s report in support of this submission, but did not press the point. As the Deputy President found, Dr McCartney expressly stated in oral evidence that he would not want to give an opinion as to whether he thought Mr Mills was physically fit to work; his report addressed predominantly the ‘THC issue’.
Further, Mr Mills submits that on appeal, the Council does not rely on Dr McCartney’s report in this respect. Instead, he contends that the Council relies solely on the report of Dr Doig. At first instance, the Council did not rely on Dr Doig’s report in respect of this contention, despite being expressly asked by the Deputy President for evidence that it would be unsafe for Mr Mills to perform his role unless he was on pain relief. Indeed, he posits that the Council submitted in closing that ‘minimal weight’ should be given to Dr Doig’s report given that he was not made available for cross-examination. The fact that the Deputy President did not make a finding with respect to Mr Mills’ ability to perform his role without effective alternative medication based on Dr Doig’s report is unsurprising given he was not invited to do so. The Commission ought not to grant permission for the Appellant to appeal and to reframe its case in this manner.
Mr Mills contends that the Deputy President did consider Dr Doig’s report when he turned to consider the appropriateness of reinstatement and made broad findings with respect to that report that he submits were open on the evidence, including:
· Dr Doig did not consider Mr Mills to be physically incapacitated, albeit he acknowledged Mr Mills experienced chronic pain and suggested a number of physical restrictions;
· Dr Doig’s suggestions as to physical restrictions were couched in terms of ‘ideally’, ‘try and avoid’ and ‘may require’ and were not set as conditions for return to work;
· Dr Doig mistakenly records that Mr Mills conveyed to him that he could not drive a vehicle with manual transmission. Dr Doig did not himself assess that Mr Mills could not drive a manual and Mr Mills’ evidence was that he could, and did, drive with a manual transmission, albeit with some pain;
· The Deputy President preferred Dr Doig’s report to the ‘Workers Compensation Certificate of Capacity’ completed by Dr Johnson; and
· The Deputy President was not persuaded by Dr Doig’s report, or the other medical evidence, that Mr Mills was so incapacitated that he could not fulfil the inherent requirements of his role.
Mr Mills also contends that Ground 2, in asserting that the medical evidence establishes an ‘obvious risk’ that reinstating Mr Mills will exacerbate his injury, was not raised by the Council at first instance, but also submits that none of the medical reports make any assessment of the risk of exacerbating any injuries should Mr Mills return to work.
Finally, Mr Mills contends in the alternative that any error was not significant. That is, even had the Deputy President found in favour of the Council in respect of Mr Mills’ capacity to safely perform his role, this would not have affected the Deputy President’s findings that the Council had not given Mr Mills sufficient time to explore other pain treatment or its failure to give fulsome consideration to the purposes of the Policy and the alternative options available to it.
The application to lead fresh evidence in the appeal
The Council sought to lead further evidence in the appeal from its Acting General Manager, Mr Porch, concerning its position that the reinstatement of Mr Mills creates a serious work health and safety risk and about the exchanges that occurred between the Council, the Respondent and Mr Mills’ union, the Australian Municipal, Administrative, Clerical and Services Union (ASU) around the time of the scheduled reinstatement of Mr Mills. It was also contended by the Council that this evidence would be relevant to its proposition that Mr Mills had not ceased to take medication containing THC.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information or evidence” on appeal. In exercising the discretion, the Full Bench is guided[12] by the principles set out in Akins v National Australia Bank (Akins).[13] Previous Full Benches have described those principles as requiring that “(a) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (b) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (c) the evidence must be credible.”[14]
In Akins, the Court qualified these “general principles” saying that “it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist.”[15] Full Benches of this Commission have also recognised that it is permissible, in an appropriate case, to depart from these principles, but it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.[16]
We declined to admit the fresh evidence in this case. Although some of the evidence could not have been provided at first instance as it related to post-Decision events, the bulk of the proposed “new” evidence dealt with material and facts already before the Commission in one form or the other. Further, the genuinely new evidence may have been credible, however it was not of sufficient probative value and would, in effect, require the Full Bench to permit further direct evidence about many of the matters that have been determined at first instance. This in our view was not an appropriate course of action.
Consideration
In relation to the grounds of appeal as they impact upon the finding that the dismissal itself was unfair, we do not consider that a reasonably arguable case of appealable error has been made out.
Given the particular circumstances of this matter and the nature and state of the medical evidence before the Commission, it was open for the Deputy President not to make the finding that Mr Mills was unable to safely perform his duties. The reasons for this are adequately stated in the extracts from the Decision set out earlier. These include that the essential purpose and focus of the report provided by Dr McCartney was around the performance of work whilst taking medication containing THC.[17] Further, there was little evidence about the context and basis for the workers compensation medical certificate provided by Dr Johnson and the report by Dr Doig was somewhat problematic given that he was not called to give evidence and the report itself was open to interpretation. In this regard, we make no criticism of the Council, noting that it did not seek to rely upon that report as part of its case at first instance and it was only introduced by Mr Mills, who was representing himself.
It would have been open to the Deputy President to find that Mr Mills could not safely perform the work with THC in his system. The uncontested evidence of Dr McCartney provided the basis for such a finding. Although a fair reading of the Decision would indicate that this was consistent with the approach taken by the Deputy President, an express finding of that kind was not made. However, this did not arise in the context of the assessment of the fairness of the dismissal, and we will return shortly to the medical evidence in terms of the appeal grounds impacting upon the reinstatement order. We also observe that the Deputy President accepted Mr Mills’ evidence that if reinstated, he would stop using the medication containing THC.[18] This would reasonably have been understood to mean that he would stop, when and if the reinstatement actually occurred. This finding was also reasonably open to the Deputy President.
The finding that the dismissal was unfair was adopted by the Deputy President based upon the particular circumstances of the matter. In addition to the findings made about the existence of a valid reason for dismissal and in relation to the medical evidence more generally, these circumstances included, in effect:
· a final position in relation to alternative pain treatment had not been reached and the Council had not given sufficient time to explore those options;[19]
· the Council did not give fulsome consideration to the options available under the policy, including an EAP tailored to his circumstances and/or a return to work program and/or a rehabilitation program;[20]
· the Council was not open to the option of Mr Mills resuming his duties, whilst not using a medication containing THC, despite his desperation and determination to keep his job, even if this meant carrying out his duties in physical discomfort.[21] We will return to this aspect; and
· Mr Mills’ personal circumstances and the significant impact of the dismissal upon him.[22]
The Deputy President found, in effect, that these considerations weighed strongly in favour of a finding of unfairness and outweighed the valid reason for the dismissal and the other s.387 considerations. This finding was open to the Deputy President, and we do not consider that an arguable case of appealable error has been demonstrated.
In relation to the notion that Mr Mills could carry out his work in discomfort, this must be seen in the context of the particular circumstances evident here and the finding that the unfairness occurred in part because the decision was, in effect, premature and was made without properly exploring other reasonable options. We would emphasise that the mere availability of options other than dismissal would not by itself normally lead to a finding of unfairness. Further, the concept of a worker undertaking work in some discomfort should always be approached with considerable caution having regard to the particular facts of any case.
We turn now to the reinstatement and the appeal grounds as they impact upon that aspect. In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian[23] a Full Bench of this Commission stated:
“[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.”
(Footnotes omitted)
It is well established that medical incapacity is a proper basis upon which the Commission may decline to exercise its discretion to order reinstatement.[24] In Smith v Moore Paragon Australia Ltd,[25] a Full Bench of the Australian Industrial Relations Commission said (in relation to an unfair dismissal remedy application under the Workplace Relations Act 1996):
“[51] The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
· further performance of the employee's contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
· reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
· reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.
[52] Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee's substantive position.”
We observe that there was no indication before the Deputy President that Mr Mills was, or would be, unproductive, or that his circumstances placed, or would place, an unreasonable burden on other employees.
The approach taken in Smith v Moore Paragon Australia Ltd was consistent with the High Court’s analysis of the reinstatement power in Blackadder v Ramsey Butchering Services Pty Ltd.[26] In that matter, members of the High Court emphasised that the power of reinstatement necessarily involved not just a restoration of remuneration but a practical return to work. McHugh J said:
“[14] To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination.”
Similarly, Hayne J said that to effect reinstatement “The employer must provide work
to be done by the employee of the same kind and volume as was being done before termination”,[27] and Callinan and Heydon JJ said that “To pay the appellant but not to put him
back in his usual situation in the workplace would not be to reinstate him.”[28]
As is confirmed in Samuel Singh v Australian Taxation Office,[29] the same approach has been taken in relation to the reinstatement power under the present Act. In Cartisano v Sportsmed SA Hospitals Pty Ltd[30] a Full Bench of this Commission said that a reinstatement order under s.391(1)(a) “must be one which achieves an actual return to work in the employee’s pre-dismissal position”, and that likewise an order under s.391(1)(b) appointing a person to an alternative position that is no less favourable “must achieve an actual return to work in the alternative position identified in the order”. The Full Bench stated:
“If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.”
This requires us to further consider the medical evidence before the Deputy President and the related findings. We have already concluded that it was open for the Deputy President to decline to make the findings sought by the Council given the nature and state of the evidence. This does not mean that there were, and are, no issues about Mr Mills’ capacity to safely perform the relevant work, however these should be assessed on the basis of medical evidence properly directed to that issue. This includes any evidence about whether the performance of the work reasonably required might exacerbate the injury. We observe that the present evidence before the Commission is equivocal about this aspect and open to interpretation.
That is, Dr McCartney did not physically assess Mr Mills, and conceded he would not give a conclusive opinion as to Mr Mills’ physical state without having someone do a ‘very specific functional assessment’. Further, Dr Doig’s report did not expressly refer to any risk of exacerbating an injury should Mr Mills return to work, or any assessment that Mr Mills’ previous return to work had exacerbated any injuries. Dr Doig’s assessment was largely that age will worsen Mr Mills’ symptoms, and that some restrictions would assist with his discomfort.
We earlier referred to the findings concerning the capacity for Mr Mills to safely perform his work whilst relying upon medication containing THC. As we had indicated, a finding that he could not do so was reasonably open on the evidence and a fair reading of the Decision is that the Deputy President adopted that view, including in relation to the remedy.
We also consider that the basis upon which the dismissal was found to be unfair in this case, properly informed the Deputy President as to whether reinstatement was the appropriate remedy.
We have found that the findings made by the Deputy President concerning the medical evidence were reasonably open, and we also do not consider that either of the appeal grounds as they impact upon the reinstatement order are such that the public interest is engaged. The Decision is also confined to its own discrete facts.
We will however shortly return to the issues that do remain as to Mr Mills’ work capacity in light of the Decision.
Conclusions and disposition of the appeal
For reasons largely set out above, we do not consider that it is in the public interest to grant permission to appeal. We are not satisfied that the appeal raises legal or factual issue of significance or general application, that there is a diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that given the discrete facts here, the Deputy President’s decision is counter intuitive or manifests an injustice. Section 400(1) of the Act requires that in such circumstances the Commission not grant permission to appeal.
We have earlier noted that there are some unresolved issues concerning Mr Mills’ capacity to safely perform the work in question. Consistent with the concept of reinstatement under the Act, the Decision and Order required that the Council return Mr Mills to his pre-dismissal position. It was also not open to the Deputy President to place preconditions on that reinstatement. At the time of the dismissal, Mr Mills held the position of a full-time Works Officer, with his performance of that work subject to suspension on full pay and a review of his medical condition and other related factors and options. Also consistent with the concept of reinstatement is that the process and options discussed by the Deputy President in the Decision at [62] and [63], and the proper functional assessment of Mr Mills’ fitness for work contemplated by Dr McCartney and discussed at [38] of the Decision, which were clearly open as part of the pre-dismissal position, remain so. We observe that this is also consistent with work health and safety obligations applying to this workplace.
We order that permission to appeal is refused.
The stay of the Order made by the Deputy President is rescinded with effect 7 days from the date of this decision.
VICE PRESIDENT
Appearances:
D Murphy (of counsel) with E Creak and P Porch for Glamorgan Spring Bay Council, the Appellant.
C Wong (of counsel) with D Predic and K Richardson for Mr Mills, the Respondent.
Hearing details:
Melbourne
2025
13 March.
[1] Adam Mills v Glamorgan Spring Bay Council[2025] FWC 116.
[2] PR783247.
[3] Letter of termination – appeal book at 008.
[4] [2025] FWC 116 at [13] – [15].
[5] [2025] FWC 116 at [35] – [36] and [38] – [39].
[6] [2025] FWC 116 at [62] – [65].
[7] [2025] FWC 116 at [68] – [72].
[8] Coal and Allied v AIRC [2000] HCA 47 at [17]
[9] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [43].
[10] Ibid at [44] – [46].
[11] (1936) 55 CLR 499.
[12] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [10].
[13] (1994) 34 NSWLR 155.
[14] See Daniela Prince-Agbodjan v Victorian Aboriginal Child & Community Agency Co-Op Ltd [2025] FWCFB 27; Paulo Gonzalez v Department of Transport and Planning [2025] FWCFB 25; Ms Te-Arn Chalmers v CloudHolter Pty Ltd [2024] FWCFB 420; Stephenie Exton v Extons Real Estate Pty Ltd [2024] FWCFB 346.
[15] Akins v National Australia Bank (1994) 34 NSWLR 155, [160].
[16] Stephenie Exton v Extons Real Estate Pty Ltd[2024] FWCFB 346, [15].
[17] Transcript at first instance PN686 to PN693.
[18] Including the Decision at [72].
[19] Decision at [62] and [63].
[20] Decision at [63].
[21] Decision at [64].
[22] Decision at [52] to [54] and [65].
[23] [2014] FWCFB 7198.
[24] Samuel Singh v Australian Taxation Office[2015] FWCFB 5258 at [13].
[25] PR942856, (2004) 130 IR 446. This decision was also cited with approval in Ngyuen.
[26] [2005] HCA 22; (2005) 221 CLR 539.
[27] Ibid at [44].
[28] Ibid at [75].
[29] [2015] FWCFB 5258.
[30] [2015] FWCFB 1523.
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