Gold Tiger Logistics Qld Pty Ltd v Audrey Campbell - [2024] FWCFB 458

[2024] FWCFB 458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Gold Tiger Logistics Qld Pty Ltd
v

Audrey Campbell

(C2024/2636)

VICE PRESIDENT ASBURY

DEPUTY PRESIDENT BELL
DEPUTY PRESIDENT O’NEILL

BRISBANE, 06 NOVEMBER 2024

Appeal against Decisions [2024] FWC 913 and [2024] FWC 1041 and Order PR773759 of Commissioner Durham at Brisbane on 9 April 2024 and 19 April 2024 in matter number U2023/8739 – Nature of fact finding engaged in by the Commission in deciding whether a dismissal is unfair – Principles in relation to consideration of after acquired knowledge are not relevant only to whether there was a valid reason for dismissal – After acquired knowledge relevant to all matters concerning whether a dismissal was harsh, unjust or unreasonable including foundational matters in s 385 including whether an employee resigned – Reliance by employer on ineffective resignation in the face of denial by an employee of resignation is a termination at the initiative of the employer – Appeal dismissed.

Overview

Gold Tiger Logistics Qld Pty Ltd (Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the Act), for which permission is required, against decisions issued by Commissioner Durham on 9 April 2024[1] and 19 April 2024.[2] The decisions respectively concerned an unfair dismissal application made by Ms Audrey Campbell (Respondent/Ms Campbell) in respect of the termination of her employment by the Appellant and an award of compensation for unfair dismissal. At first instance, the Respondent contended that she was unfairly dismissed on 11 September 2023, following a heated argument with her supervisor at the office on 28 August 2023.

In the Decision of 9 April 2024 (Merits Decision), the Commissioner did not accept that the Respondent resigned from her employment, finding that her employment was terminated on the Appellant’s initiative. The Commissioner then considered the substantive merits of the application and determined that the Respondent had been unfairly dismissed. In the Decision of 19 April 2024 (Compensation Decision), the Commissioner, having found that reinstatement was inappropriate, determined that compensation was appropriate in all the circumstances and ordered the payment of compensation by the Appellant to the Respondent in the amount of $32,000.02 to be taxed according to law. An Order[3] was issued on 19 April 2024 requiring that the amount be paid within 21 days from the date of the Order.

On 29 April 2024, the Appellant lodged a Notice of Appeal and sought a stay of the Decisions and Order of the Commissioner, pending the determination of the appeal. In a decision issued on 8 May 2024,[4] Deputy President Slevin refused the application for a stay order. The Appellant did not appeal the decision concerning the stay, and at the time the appeal was heard had not paid the amount of compensation ordered.

Directions were issued on 1 May 2024 for the filing and service of outlines of submissions in relation to permission to appeal and merits of the appeal. We conducted a hearing by video link on 14 June 2024. At the hearing, the Appellant was represented by Mr A Sandroussi, an employee of the Respondent and Manager of its compliance and legal department who represented the Appellant in the first instance proceedings. Ms Campbell was self-represented, at first instance and in the appeal.

Merits Decision

The Merits decision stated that it was not in dispute that Ms Campbell commenced employment with the Appellant on 6 October 2020 as a full-time Customer Service & Logistics Coordinator and her remuneration was $64,000 per annum.[5] The Commissioner framed the matters in dispute as follows:

“[7] There is no dispute between the parties that the Small Business Fair Dismissal Code did not apply, that this was not a case involving genuine redundancy and that the application was made within the period required, however the Respondent is of the view that Ms Campbell is not a person protected from unfair dismissal as she was not dismissed. Subsequently, the Respondent has raised a jurisdictional objection which must be determined before I consider the merits of Ms Campbell’s unfair dismissal application.”

In relation to the Small Business Fair Dismissal Code, we note that while the Appellant said in its Form F3 Response to the application, that it had only five employees, and raised issues relating to the Code in its submission, it was confirmed during the first instance hearing that the Appellant intended by this statement to indicate that it had only five administrative employees, and accepted that it was not a small business because of the numbers of persons employed by related entities.

As the application otherwise involved contested facts, the Commissioner considered it appropriate to conduct a hearing, having regard to ss. 397 and 399 of the Act and the views of the parties. At the first instance hearing, the Respondent gave evidence on her own behalf, and evidence for the Appellant was given by three witnesses, Mr Mark Heness (State Manager), Ms Josiane Jackson (Customer Service Assistant) and Ms Pesesio (Pesi) Jackson (Operations Manager). Ms Pesi Jackson is the mother of Ms Josiane Jackson and was the Respondent’s supervisor. In relation to whether the Respondent was dismissed, the case advanced by the Appellant at first instance centred on an altercation between the Respondent Ms Pesi Jackson, on 28 August 2023, during which it asserted that the Respondent resigned her employment. The Commissioner provided a summary in paragraphs [16] – [17] of the positions advanced at first instance by the Appellant and the Respondent, and made the following observations:

“[18] Determining this matter turns in large part on exactly what was said and done during an altercation that occurred between Ms Campbell and her supervisor, Ms Pesi Jackson on 28 August 2023. There is no dispute between the parties that this altercation occurred, however there are clear differences as to what was said. The parties agree that four people were present during the altercation, Ms Campbell, Ms Pesi Jackson, Ms Josiane Jackson, and Ms Donna-Marie Parker. It is also of note that Ms Josiane Jackson is the daughter of Ms Pesi Jackson. As submitted by Mr Sandroussi in his closing oral submissions, due to this relationship, the only truly independent witness to the altercation is Ms Parker, however Ms Parker has not provided a witness statement, nor did she attend the hearing.
[19] I note Gold Tiger submits that Ms Parker did not lodge a statement because, she and her partner had received a text message from Ms Campbell’s partner stating “I’m coming for you You Lying [sic] bastard. Watch your back” and that this can be inferred as a threat with the intention to scare Ms Parker and prevent her from providing evidence. Given the wording used and the heated emotions involved in this matter, I find it unlikely that this text message had the intention of preventing Ms Parker from providing any evidence, nor would have prevented Ms Parker from at the least providing a written statement.”

In relation to the events leading to Ms Campbell’s dismissal, the Merits Decision records that on 28 August 2023, Ms Josiane Jackson approached Ms Campbell asking questions about whether drivers’ run sheets had been completed, to which Ms Campbell responded by saying that the run sheets had not been completed as she had been busy in the previous week due to having new customers and Ms Josiane Jackson being on leave. Ms Pesi Jackson then joined the conversation and allegedly made the comment, “What do you do, you worked late every night last week and did nothing”.[6] The Respondent said that Ms Pesi Jackson repeated the comment three times in a raised voice which prompted her to also raise her voice in response. In this regard, the Commissioner said:

“[23] Ms Campbell states that the discussion continued to be hostile, moving to disagreements regarding breaks and overtime. Ms Campbell and Ms Pesi Jackson both state that the other was shouting at them. There is also disagreement as to what occurred prior to Ms Campbell leaving the office. The evidence of all parties supports that the argument occurred.
[24] Whilst some of the minor details regarding precisely what was said and who stood where differ slightly, it is clear that the altercation commenced as a discussion between Ms Josiane Jackson and Ms Campbell and that it related to the work done by Ms Campbell on the run sheets in the previous week, whilst Ms Josiane Jackson had been on leave. It is also not in contention that Ms Pesi Jackson inserted herself into the discussion, at which point things escalated. As such, I do not consider any inconsistency in the evidence up to this point, or the evidence relating to the specifics of each other’s roles, to be of any consequence to the determination of this matter.”

It was observed by the Commissioner that where the recollection of the parties differed significantly was with respect to what was said by Ms Campbell immediately before she left the office. The Commissioner set out the evidence about this matter as follows:

“[25] … Although the statements provided confirm that Ms Campbell lifted the run sheets paperwork from her desk and either placed or threw them on Ms Pesi Jackson’s desk. Specifically, Ms Campbell stated:
‘I lifted the incomplete Run Sheets paperwork from my desk and placed them on Pesi Jackson’s desk saying, “this is shit”, “you can do this” and “I’m leaving to tell Mark”. At no point during the altercation with Pesi Jackson did I ever state that I was resigning or terminating my employment.’

While Ms Josiane Jackson stated:
‘Audrey then threw a pile of timeslots onto Pesi’s desk saying ‘I quit & see if you can do the timeslots as I’ve had enough’ Audrey then left the office.’’

Meanwhile Ms Pesi Jackson stated:
‘She then grabbed a significant number of timeslot paperwork up and threw them down on my desk and then said "Here you do them, because I have had enough and I quit and I will be telling Mark”

[26] Ms Campbell left the building and found Mr Heness, outside in the depot. She informed Mr Heness of the situation. Mr Heness acknowledged how upset she was and advised her to go home.”

The Decision records that on 28 August 2023 (the day of the altercation), Ms Campbell obtained a medical certificate for two weeks off work for her mental health. Later that day, Ms Campbell provided this medical certificate to Mr Heness and also lodged a formal complaint, by email, about the altercation with Ms Pesi Jackson. On 4 September 2023, Mr Heness corresponded with Ms Campbell regarding her complaint and sought clarification from her about three points, including whether she had verbally handed in her resignation. Mr Heness said in the correspondence that he only became aware of the Respondent’s resignation from the statements of those who witnessed the altercation.[7] At paragraph [30], the Commissioner extracted the following clarification provided by Ms Campbell in an email sent on 5 September 2023, in response to Mr Heness:

“At no time during the conversation I had with Pesi Jackson did I say I was resigning, as I said in my letter of complaint I put paperwork on her desk and said to her “you can do this” and indicated I was going home (I omitted to say previously that I grabbed my bag and rushed out as by this time I was in tears). I would ask that if I had made such a statement about resigning why you as the Manager was not informed of this immediately rather than you finding out through statements of fact? (original emphasis).”

The Commissioner further noted that on 8 September 2023, after hearing nothing further, Ms Campbell sent an SMS message to Mr Heness to arrange for her return to work. Mr Henss responded advising that he had not made a final decision on Ms Campbell’s complaint and requested that she take a day off on 11 September 2023, to allow him time to finalise the outcome of the investigation.[8]

In paragraphs [32] – [33], the Commissioner summarised an Outcome Letter sent by Mr Heness to Ms Campbell on 11 September 2024 in which he stated that he was not present during the altercation and therefore had to rely on information supplied by all parties involved and present at the time, along with “other factors that would be contributing input to the result of the day”.[9] The Outcome Letter said that Mr Heness had sought statements from “all witnesses”, and “all parties” confirmed that Ms Campbell “dropped” the paperwork on Ms Pesi Jackson’s desk and said, “You can do this” along with the statement “I quit, I’m telling Mark I'm leaving”. The Outcome letter also said that: “This may have been an excited utterance, which you omitted in your statement however it was heard by all in the room at the time”.

The Commissioner also noted that the Outcome Letter went on to document findings made by Mr Heness, including that it was within Ms Pesi Jackson’s rights to ask Ms Campbell about the completion of the run sheets; that various tasks for which Ms Campbell was responsible, including time slot allocation and preparation, were not completed, resulting in delays in the business’s ability to meet compliance parameters and the delivery of products; and that there was a lack of focus on Ms Campbell’s part with respect to the customer service area. In closing, Mr Heness said in the Outcome Letter:

“I accept that you may be distressed by this response as it does not meet your requirements in your complaint however, I believe it is the right thing to do at this time. I understand you have stated that you did not resign however all parties in the room heard this declaration clearly from you and, as you know, I refuse to negotiate with this type of statement so I accept your resignation effective immediately and will process through any entitlement owed to you.”[10]

In determining whether Ms Campbell had been dismissed, the Commissioner set out the legislative provisions in ss. 385 and 386, and referred to the decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[11] in which a Full Bench of the Commission articulated the approach to considering a resignation expressed in the “heat of the moment” or a “forced” resignation in the context of the two limbs in s. 386 of the Act. The Commissioner then noted that the Respondent strongly contested that she said “I quit” before leaving the office, and while there were three witnesses to the altercation, only Ms Pesi Jackson and Ms Josiane Jackson had provided evidence.

The Commissioner found that Ms Pesi Jackson’s oral evidence was consistent with her witness statement in that she stated that Ms Campbell threw the timeslot paperwork down on her desk before stating “I quit and I will be telling Mark”.[12] In relation to Ms Josiane Jackson, the Commissioner observed that her oral evidence was that Ms Campbell “threw” the paperwork on Ms Pesi Jackson’s desk, but Ms Josiane Jackson “failed to mention Ms Campbell advising of her resignation”, notwithstanding that she was pressed by Mr Sandroussi for more details about what happened prior to the Appellant leaving the office.[13] The Commissioner considered that there was an inconsistency between Ms Josiane Jackson’s written statement and her oral evidence and that Ms Josiane Jackson’s oral evidence was consistent with that of the Respondent.

Next, the Commissioner considered the proposition that the Respondent may have been misheard by Ms Pesi Jackson due to having a “thick Scottish accent”. The Commissioner noted that the Respondent raised this proposition when giving oral evidence and also stated in her witness statement that this had occurred previously where Ms Pesi Jackson’s misinterpretation of her communications at work, became “something of a standing joke in the office”.[14] The Commissioner extracted an exchange between Ms Pesi Jackson and the Respondent in cross-examination and observed that it was clear that Ms Pesi Jackson was struggling to understand what the Respondent was saying.[15] The Commissioner concluded:

“[46] Having observed the interactions between Ms Campbell and Ms Pesi Jackson during the hearing and noting that the discussion at this point was heated, I consider it is highly likely that Ms Campbell was misheard. Viewed objectively, and noting the inconsistencies observed in Ms Josiane Jackson’s evidence, I accept Ms Campbell’s submission that she said ‘this is shit’, and that it is likely that Ms Pesi Jackson may have heard this as ‘I quit’.”

In addition, there were other matters that the Commissioner considered in reaching the finding that it was unlikely that the Respondent had resigned. Those matters included that it was difficult to rationalise that the Respondent would have resigned, then walked out of the office in tears to find Mr Heness and have a discussion with him, in which she failed to mention her resignation and also failed to mention her resignation in her email to him later that day;[16] the Respondent lodging a medical certificate and a formal complaint about the altercation on the same day as she allegedly resigned was difficult to reconcile;[17] Mr Heness’ actions in accepting the Respondent’s medical certificate and undertaking an investigation were actions that would be reasonably taken by an employer with respect to an ongoing employee;[18] the Respondent took steps to clarify that she had not resigned; and the Respondent was 64 years of age at the time and was due to retire in the next 9 months.[19] In those circumstances, the Commissioner preferred the Respondent’s evidence and found that she did not resign.[20]

The Commissioner went on to consider, in the alternative, whether if the Respondent said that she quit during the incident on 28 August 2023, this was not an effective resignation, in circumstances where it was given in the heat of the moment. In this respect, the Commissioner had regard to decisions of the Commission[21] as authority for the proposition that “where an ostensible resignation was made in the heat of the moment, then it could not be reasonably understood to have conveyed a real intention to resign”.[22] Noting the correspondence from Mr Heness seeking clarification about the Respondent’s intention to resign and the clarification provided by Ms Campbell, the Commissioner said:

“[60] I am satisfied and find that Ms Campbell did confirm to Gold Tiger that she had no intention of resigning. Further, I have previously found that it is likely Ms Campbell did not say the words ‘I quit’, however, if I had found in the alternative, I am satisfied that such a statement would have been made in the heat of the moment and not intended, noting that Ms Campbell had been involved in a heated exchange with Ms Pesi Jackson and was in tears by the time she left the office. Additionally, Gold Tiger concede in the Outcome Letter that this may have been an ‘excited utterance’. Further, that the exchange had affected her so much that she had sought medical assistance. In these circumstances, I am satisfied that Ms Campbell did not resign.”

Accordingly, the Commissioner dismissed the jurisdictional objection, finding that Ms Campbell had been dismissed by the Appellant on 11 September 2023 by way of the Outcome Letter.[23] Next, the Commissioner proceeded to consider whether Ms Campbell’s dismissal was harsh, unjust or unreasonable having regard to the matters in s. 387 of the Act.

The Commissioner first addressed the Appellant’s contention that if Ms Campbell was found to have been dismissed, her conduct on 28 August 2023 amounted to serious misconduct,[24] on the basis that Ms Campbell had dealt with her supervisor in a “less-than ethical, less than respectful and less than professional manner” in breach of Policy and Ethics and the Employee Induction Manual.[25] The Commissioner then considered a submission advanced by the Appellant at first instance that if the Respondent was dismissed, the dismissal related to her conduct and not her work performance.[26] However, the Commissioner noted that neither Ms Campbell nor Ms Pesi Jackson described in their evidence any behaviour that would reasonably lead to the conclusion that Ms Campbell’s conduct amounted to serious misconduct,[27] and that Mr Heness did not at any stage raise any allegations of serious misconduct with Ms Campbell.[28]

The Commissioner also noted Mr Heness’ view, expressed in his evidence, that he would not negotiate if “somebody comes in to me and say, look, I quit”[29] and concluded that the dismissal was most likely prompted by Mr Heness’ personal view on resignation,[30] and his belief that Ms Campbell had resigned.[31] The Commissioner said that Ms Heness’ strongly held view in relation to how he responds to resignation raised questions about his objectivity in the investigation and in reaching the outcome.[32] The fact that Mr Heness did not ask Ms Campbell to put her resignation in writing was considered by the Commissioner as adding weight to Ms Campbell’s contention that her purported resignation was used as a convenient way to dismiss her.[33] In conclusion, the Commissioner found that there was no valid reason for the Respondent dismissal.[34]
In relation to whether Ms Campbell was notified of the reason for her dismissal – s. 387(b) – the Commissioner noted that Ms Campbell became aware of her dismissal after receiving the Outcome Letter on 11 September 2023. The Commissioner was of the view that Ms Campbell, having clarified that she did not resign or intend to resign and receiving no further communication until the Outcome Letter, would have reasonably presumed that the only matter being investigated was her complaint, but that was not the case. The Commissioner considered that this matter weighed in favour of a finding that the dismissal was unfair.

As to whether Ms Campbell was afforded an opportunity to respond – s. 387(c) – the Commissioner said that she did not accept that Ms Campbell’s conduct constituted serious misconduct and found that her immediate termination with no opportunity to respond was harsh. The Commissioner accepted that while the Appellant sought a response to several queries during the investigation, Ms Campbell was never advised that the investigation related to her conduct rather than her complaint or that the investigation would lead to her termination. The Commissioner was also satisfied that the additional issues set out in the Outcome Letter were never raised with Ms Campbell with the result that Ms Campbell was not afforded an opportunity to respond, and this factor weighed in favour of the dismissal being unfair.

As Ms Campbell was not afforded an opportunity to respond, the Commissioner found that there was no opportunity for Ms Campbell to request a support person (s. 387(d)). Further, the Commissioner considered the matter in s. 387(e) to be irrelevant as the dismissal did not relate to Ms Campbell’s work performance. It was noted that neither party advanced any submission in relation to whether the size of the Appellant’s enterprise impacted on the procedures adopted in effecting Ms Campbell’s dismissal (s. 387(f)) and no such impact was found. With respect to s. 387(g), the Commissioner observed that while the Appellant did not have dedicated human resources management specialists or expertise in its Brisbane office, Mr Sandroussi was the Appellant’s legal department manager who was in the position to advise the Appellant about the procedures and appropriateness of the dismissal and this factor weighed in favour of the dismissal being unfair.

In conclusion, the Commissioner was satisfied that Ms Campbell was unfairly dismissed. In relation to remedy, the Commissioner noted that although Ms Campbell initially sought reinstatement, she subsequently stated that the relationship with the Appellant had been significantly damaged, leading to distrust and disrespect. The Appellant agreed that reinstatement was inappropriate as the relationship had deteriorated, particularly after Ms Parker and her partner receiving a SMS message from Ms Campbell’s husband on 16 November 2023. In this regard, the Commissioner noted:

“[109] …Ms Campbell maintains she was unaware that this text message had been sent, and that upon it being brought to her attention, she reached out to all concerned offering her apologies and expressing her disappointment in her husband’s conduct. She does however acknowledge that because of this message, and the conduct of all parties since she lodged her unfair dismissal application, the relationship has deteriorated to the point that reinstatement may be unworkable.”

As such, the Commissioner found that reinstatement was inappropriate and reserved her decision on compensation, subject to the receipt of further material from the parties.

Compensation Decision

In the Compensation Decision, the Commissioner commenced by noting that directions were issued on 10 April 2024 for the filing of submissions and evidentiary material in relation to the matters in s. 392 of the Act concerning compensation. While Ms Campbell complied with the directions, the Commissioner noted the Appellant did not file any material. After setting out the legislative provisions in s. 390, the Commissioner found that in all the circumstances of this case, she considered appropriate to exercise her discretion to award compensation.[35]

Adopting the well-established approach articulated in Sprigg v Paul’s Licensed Festival Supermarket[36] to calculating compensation, the Commissioner considered each of the matters in s. 392(2) as follows. In relation to the effect of the order on the viability of Appellant’s enterprise, the Commissioner, noting that no material was filed by the Appellant, was not persuaded that the order for compensation should not be made based on assertions by Mr Heness that the Appellant needed to reduce costs in the depot, as there was no evidence to support that assertion. With respect to the length of Ms Campbell’s service – s. 392(2)(b) – the Commissioner said:

“[16] I am satisfied on the evidence provided that Ms Campbell’s employment with Gold Tiger commenced on 6 October 2020 and that her length of service is therefore 2 years, 11 months and 5 days. This is a moderately short period of time, however, I do consider the fact that Ms Campbell was so close to her anticipated retirement date to be a factor, noting that it was Ms Campbell’s clear intention to stay with Gold Tiger until her retirement.”

In relation to the remuneration that Ms Campbell would have received, or would have been likely to receive, but for the dismissal – s. 392(2)(c) –– the Commissioner said:

“[19] I note that Mr Sandroussi’s closing submissions indicate that Gold Tiger are ‘short on employees and wanted more’. In the absence of any argument to the contrary, I consider Ms Campbell’s position would have been ongoing up to her retirement date. Further, given Ms Campbell’s performance was not in question, noting that Mr Sandroussi states in his closing submissions that Ms Campbell is ‘a very competent person’, I can see no reason that she would not have remained in employment with Gold Tiger until her retirement in June 2024.
[20] Taking all the above into account, I conclude that Ms Campbell would have remained employed with Gold Tiger until June 2024 which was when she intended to retire. The period from when Ms Campbell’s employment ended on 11 September 2023 until 1 June 2024 is 37 weeks.”

The Commissioner accepted Ms Campbell’s evidence that she had attempted to apply for several other jobs following her dismissal and no deduction was made for any failure to mitigate her loss (s. 392(2)(d)). The Commissioner found that Ms Campbell earned $1,343.00 from one week of employment with an employer after her dismissal (ss. 392(2)(e) and (f)). As the Commissioner did not find misconduct on Ms Campbell’s part and the Appellant made no submissions on this point, no deduction was ordered by the Commissioner on account of misconduct. As to the amount of compensation, the Commissioner accepted that Ms Campbell’s weekly salary was $1,230.77 and the total remuneration for 37 weeks would have been $45,538.49. The Commissioner then determined that the applicable compensation cap under s. 392(5) was 26 weeks of Ms Campbell’s weekly pay which was equivalent to $32,000.02 and ordered compensation in that amount.

Permission to appeal

An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[37] There is no right to appeal, and an appeal may only be made with the permission of the Commission. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[38] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[39]

The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. The public interest test in s. 400(1) is not satisfied simply by the identification of error or a preference for a different result. The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.[40] The public interest might be attracted where:
·     a matter raises issues of importance and general application;
·     there is a diversity of decisions at first instance so that guidance from an appellate court is required;
·     the decision at first instance manifests an injustice;
·     the result is counter intuitive; or
·     the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[41]

The decision under appeal is of a discretionary nature. As the majority of the High Court held in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[42] discretion refers to a decision-making process in which no one consideration and no combination of considerations is necessarily determinative of the result. It is well established that the task of deciding whether a dismissal is unfair because it is harsh, unjust and/or unreasonable, is a discretionary judgment in a broad sense.[43] A decision maker charged with making a discretionary decision has some latitude as to the decision to be made, and given this, the correctness of the decision can only be challenged by showing error in the decision-making process,[44] or that the discretion has not been correctly exercised. [45] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Member at first instance, in the absence of appealable error.

The approach taken in relation to whether there is error in a discretionary decision, and which is applied in appeals against such decisions under s. 604 of the Act, was stated by the High Court in House v The King as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”[46]

Further, s. 400(2) provides that in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact.”[47] A significant error of fact can be characterised as an error that vitiates the ultimate exercise of the discretion.[48] It is well-established that s. 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally, the test is stringent,[49] and s. 400(2) modifies the principles in House v The King and evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.[50]

Grounds of appeal and Appellant’s submissions

The Appellant advanced 8 grounds of appeal, variously contending that the decision of the Commissioner is unreasonable and unjust, that the Commissioner made errors of law and fact, was guided by irrelevant matters and failed to take into account material considerations, and that the Commissioner erred in assessing compensation. The grounds set out in the Notice of Appeal are as follows:

“1.That the Decision is unreasonable and plainly unjust: the Commissioner having reached his (sic) determination by relying on facts that were not available to the employer at the time of the dismissal
2. That the Commissioner acted upon a wrong principle: by relying on facts that only became apparent at the hearing as opposed to relying on the facts as they were at the time of the dismissal.
3.That the Commissioner was guided by irrelevant factors.
4. That the Commissioner has mistaken the facts.
5. That the Commissioner failed to take several material considerations into account.
6. In calculating the compensation, the Commissioner failed to take into account the fact that the Respondent was to reach her retirement age on 1 June 2024 and as such, the calculations for compensation are wrong.
Significant Errors of Fact
7. In accepting that the Respondent was not aware of her husband’s message.
8. In not relying on the evidence of Donna Parker.”

Grounds 3 – 8 contain a notation indicating that they are to be expanded by way of submissions. The submissions in relation to each ground of appeal significantly overlap. In relation to ground 1 it is submitted that the decision is unreasonable and plainly unjust because the Commissioner reached her decision by relying on facts that were not available to the employer at the time of Ms Campbell’s dismissal and that the observations of the Commissioner at paragraph [18] that the determination of this case in large part turned on exactly what was said and done during the altercation between Ms Campbell and Ms Pesi Jackson, indicates that the Commissioner applied the wrong test. The Appellant said that the correct approach is that “one needs to look at what material was available to the employer at the time of the event, what matters were raised before it, should he investigate these matters and what issues it had to deal with before reaching its decision”. The Appellant said that at the time of the event, the employer had the following issues present before it: (a) Ms Campbell did not do her allotted work; (b) had an altercation with her supervisor; (c) challenged her supervisor; (d) refused to do her work; and (e) announced that she quit.
The Appellant also said that item a. was clearly evident from the incomplete work at the office and items b. and c. were not in dispute. In his investigation, Mr Heness put to Ms Campbell the remaining allegations[51] and Ms Campbell’s response was that she “confirmed” items b., c. and d. but denied item e.[52] Bearing in mind that Mr Heness heard Ms Campbell tell him that she was going home, and he was not sure if she would be coming back, the Appellant submitted that it was incumbent on Mr Heness to choose what and who to believe. While noting that he did not have the benefit of an alternative explanation, such as the one offered by Ms Campbell after lodging her complaint (concerning the possibility of being misheard), Mr Heness chose to believe the other three witnesses as their evidence, combined with the fact that the work allotted to Ms Campbell was not completed, did indicate wrongdoing on Ms Campbell’s part. The Appellant argued that the possibility that Ms Campbell was misheard was offered “way after the decision was made” and does not advance Ms Campbell’s case, nor can it be relied upon to accept that Ms Campbell was dismissed.

By ground 2 the Appellant again asserts that the Commissioner acted upon a wrong principle by relying on facts that only became apparent at the hearing as opposed to relying on the facts as they were at the time of the dismissal. In this regard, the Commissioner relied on several matters to determine that Ms Campbell did not say that she quit. Those matters are:

·     The failure of Ms Josiane Jackson to mention at the hearing that she heard Ms Campbell say she quit.
·     The possibility that Ms Campbell was misheard by Ms Pesi Jackson when she said, “this is shit” and that Ms Pesi Jackson likely heard “I quit”.
·     The absence of other independent evidence from Ms Donna Parker who failed to appear in the proceedings.

The Appellant submits that this reasoning fails to take into consideration the following facts:
·Mr Heness clearly mentioned that Ms Campbell told him that “she was going home and was not sure if she was coming back”[53] which was not contested at the hearing.
·At the time when Mr Heness made his decision, he had the benefit of:
1.    An email from Ms Donna Parker[54] in which she informed him that she heard Ms Campbell say, “I’ve had enough and I’m telling Mark I’m leaving”;
2.    An email from Ms Josiane Jackson[55] in which she informed him that she heard Ms Campbell say, “She quit & to see if she could do the timeslots because she had enough” which was confirmed in her statutory declaration dated 14 September 2023;[56] and
3.    Ms Pesi Jackson’s oral statement that Ms Campbell said to her “You do it, I quit”[57] corroborated by Ms Josiane Jackson in her statutory declaration dated 14 September 2023.
·The possibility that Ms Campbell was misheard was never brought to the attention of Mr Heness at the time of the investigation, despite the fact that he clearly questioned that fact in his letter to Ms Campbell dated 4 September 2023.[58]

According to the Appellant, at the time Mr Heness was conducting his investigation, the questions he was required to answer were:
1.    Did Ms Campbell say, “she quit”, noting that three people in his office said she did, despite her later denial?
2.    Did Ms Campbell have an altercation with her supervisor and make statements that were in direct opposition to her duties, noting that Mr Heness had three people including Ms Campbell’s supervisor said she did.
3.    What steps to take if the above was confirmed? Mr Heness accepted that the Respondent did say she quit and accepted her resignation.
The Appellant submits that for the above reasons, the Commissioner made an error of law by relying on facts that emerged during the hearing which were never in question in the period when the decision was made. By ground 3 the Appellant reiterates that, for reasons outlined in grounds 1 and 2, the Commissioner was guided by irrelevant matters. Those matters are irrelevant as they were not available at the time when the employer reached its decision to accept Ms Campbell’s resignation.

By ground 4 the Appellant asserts that that the Commissioner has mistaken the facts. In this regard, reference was made to paragraph [22] of the Merits Decision in which the Commissioner observed that Ms Pesi Jackson joined the conversation (between Ms Campbell and Ms Josiane Jackson) and made the comment, “What do you do, you worked late every night last week and did nothing”. The Appellant also referred to paragraph [24] in which the Commissioner said, “it is also not in contention that Ms Pesi Jackson inserted herself into the discussion, at which point things escalated”. The Appellant submits that the Commissioner’s comments indicate a belief that Ms Pesi Jackson did not have the right to join the conversation in circumstances where Ms Pesi Jackson was the Respondent’s supervisor. This was said to have led to an incorrect conclusion that the Respondent was not guilty of the “wrongdoing” which led to the decision to accept her resignation. Further, the Appellant contended that this conclusion led to the Commissioner’s erroneous finding that the Respondent was dismissed, and that the dismissal was harsh, unjust or unreasonable. In relation to this ground, the Appellant also reiterated its submissions about facts that it contends were not considered by the Commissioner in relation to the discussion between the Respondent, Ms Pesi Jackson, Ms Josiane Jackson and Ms Parker about run sheets, and the discussion between the Respondent and Mr Heness before she left the workplace.

By ground 5 the Appellant contends that the Commissioner failed to take into account several material considerations and “relied heavily” on the following matters: that Ms Pesi Jackson and Ms Josiane Jackson are related (mother and daughter); that Ms Pesi Jackson could have misheard Ms Campbell; and that Ms Josiane Jackson, who was 19 years old, failed to mention during examination and cross-examination that she heard Ms Campbell say “I quit”, to reach the conclusion that these words were not uttered and Ms Pesi Jackson misheard the words “this is shit” as “I quit”. It was also contended that the Commissioner failed to take into consideration that the words “this is shit” and “I quit” are totally different in sounds, length and connotation and the evidence about what the Respondent said that was provided by the other witnesses. As a result, the finding that Ms Campbell did not quit and that there was a dismissal, cannot be supported by the evidence available to the Commissioner.

Further, in relation to ground 5, the Appellant contends that the Commissioner “relied heavily” on the authority in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli to infer that a resignation given “in the heat of the moment” is not legally effective. According to the Appellant, this decision does not cover cases where the incident was instigated by the employee, the “heat of the moment” was caused by the employee’s own wrongdoing, and the stress felt was due to the employee not having the result that he or she intended or expected.

By ground 6 the Appellant asserts that the calculation of compensation by the Commissioner was erroneous. In this regard, the Appellant submits that the Commissioner failed to consider that Ms Campbell was to reach her retirement age on 1 June 2024. In addition, the Appellant submits that the compensation cap is the maximum amount a person would be entitled to if they have been unfairly dismissed and that a lesser amount may be ordered, depending on certain factors not taken into account by the Commissioner, including that an employer, who has a previous history of unfairly dismissing employees, may be more exposed to pay maximum compensation; a higher amount of compensation may be ordered if the employer’s conduct was deliberate and engaged in bad faith; and that the amount may be reduced by reason of an employee’s misconduct. The Commissioner was also said to have failed to consider that when the Appellant decided to accept Ms Campbell’s resignation, she had not done the work allotted to her, had an altercation with her supervisor, challenged her supervisor, refused to do the work and announced that she quit. The amount of compensation awarded is excessive and should be reduced to reflect the above factors.

By ground 7 the Appellant contends that it was not open to the Commissioner to reach the findings on the evidence that Ms Campbell was not aware of the text message sent by her husband (at paragraph [109]) and that the message was not of a nature such as to prevent Ms Parker from providing a witness statement (at paragraph [19]). In particular, the Appellant points to evidence that the text message was sent immediately after a conciliation conference where Ms Campbell learned who the witnesses for the Appellant were. The Commissioner also erred by failing to consider Ms Parker’s statement, provided in an email sent at 10:36am on 28 August 2024, establishing that Ms Parker was fearful of appearing and giving evidence before the Commission.[59] Mr Sandroussi also referred to evidence said to have been contained in an email from Mr Heness to Mr Sandroussi sent on 20 November 2023 at 11:26am, in which Mr Heness stated that Ms Parker “is fearful now that she has been threatened directly”.[60]

Ground 8 reiterates the matters in ground 7 and contends that the Commissioner’s rejection of the email from Ms Parker, deprived the Appellant of the evidence from the only independent witness to the altercation, which resulted in the finding that Ms Campbell was misheard. That finding, had significant weight in the Commissioner determining that Ms Campbell was unfairly dismissed.

In addition, the Appellant contends that the public interest will be best served if permission to appeal is granted as the decision at first instance is clearly unjust and manifests an injustice. With respect to the Commissioner’s finding at paragraph [99] that the size of the Appellant’s enterprise had no impact on the procedures followed in effecting Ms Campbell’s dismissal, the Appellant asserts that it disclosed in its Form F3 Response that the Appellant has 5 employees with limited capacity to conduct an in depth investigation, and that if the matter concerning the size of the Appellant’s enterprise was a relevant factor, it was denied natural justice by not being afforded an opportunity to address the issue. The Appellant further contends that a substantial injustice will result if permission to appeal is refused, and the legal principles adopted by the Commissioner appear disharmonious with other recent decisions dealing with similar matters.

Respondent’s Submissions

The Respondent submitted that the reason many facts became evident after the dismissal was largely due to the Appellant’s inadequate attempt to investigate the complaint and consider all available evidence and options in a fair and reasonable manner. The Respondent said that the only contact she received from the Appellant was an email from Mr Heness dated 4 September 2023 seeking additional information to the three questions raised. All other communication in the period between the Respondent leaving the office on 28 August 2023 and receiving the outcome of the investigation on 11 September 2023 was initiated by her. The Respondent also said that there was a failure on the Appellant’s part to properly investigate her complaint.

In relation to the factual matters referred to by the Appellant, it was submitted by the Respondent that the work in issue was not actually allocated to her, and in the week prior to the altercation was allocated to everyone in the office, due to leave absences, as instructed by her Supervisor and Depot Manager. In relation to the altercation, the Respondent said that while not disputing that it occurred, what was in dispute was how it was initiated and progressed. In that regard, the Respondent maintained that it was Ms Pesi Jackson who shook her head and shouted loudly and repeatedly at her, and that she only raised her voice in response. The Respondent also said that she did not refuse to complete the tasks, but did not have time to complete them. The Respondent further maintained that she had not announced that she quit and had consistently denied this assertion.

The Respondent rejected the argument that the Commissioner did not consider her retirement age in assessing compensation, noting that her planned retirement on 1 June 2024 would have been 32 weeks after the date of her dismissal, which was greater than the 26 weeks of compensation ordered.

Consideration

Overview of appeal grounds

As we have noted, the matters on which the grounds of appeal are based, overlap to a significant degree. All grounds of appeal, except for ground 6, take issue with the Commissioner’s conclusion that the Respondent was dismissed. Appeal grounds 1 – 3 assert that in concluding that the Respondent did not resign her employment the Commissioner made an error of law by relying on facts that emerged during the hearing, and which were not known to the Appellant, or were not in question, when the Respondent’s employment ended. The Appellant asserts that these facts were therefore irrelevant to the matters the Commissioner was required to determine and should not have been considered.
All grounds other than ground 6 also assert significant error of fact in relation to the way the Commissioner dealt with the evidence of witnesses for the Appellant in the first instance hearing. In this regard, the Appellant submits that the conclusion that the Respondent did not resign her employment was made against the weight of the evidence, or without proper weight being placed on that evidence, or Ms Parker’s evidence was unfairly excluded. Appeal ground 6 relates to the approach taken by the Commissioner to the calculation of compensation.

For reasons we develop below, the Appellant’s submission in relation to the error of law with respect to appeal grounds 1 – 3 is misconceived. There was also no error in the approach the Commissioner took to dealing with the evidence of the Appellant’s witnesses and the factual errors the Appellant asserts, even if established, are not significant. Further, the approach the Commissioner took to assessing compensation was entirely orthodox and discloses no error. Before considering the appeal grounds in detail, we first consider the Appellant’s contention about the reliance by the Commission on facts that the Appellant complains were not known at the time the Respondent was dismissed and which arose during the hearing of the case at first instance.

Reliance on facts emerging during the hearing

The Appellant’s proposition that the Commissioner erred by relying on facts not known to the Appellant when the Respondent’s employment ended or that were raised for the first time in the hearing, misunderstands the Commission’s fact-finding function. It has long been established that, where the reason for dismissal is based on alleged misconduct, the Commission must determine whether the misconduct took place and what it involved, based on the evidence in the proceedings before it rather than whether the employer believed on reasonable ground, that the misconduct occurred.[61] The same proposition applies to disputed facts, such as whether (in this case) the Respondent said: “I quit” and resigned her employment. That does not mean that, for example, explanations given for the first time at a hearing before the Commission, cannot be taken into account to disbelieve a particular witness’ version of events. Conversely, a conclusion may be drawn that the failure of a particular witness to provide an explanation at an earlier time, for some matter relevant to the proceedings, casts doubt on the veracity of the witnesses’ evidence. The acceptance or rejection of such explanations is simply a part of the fact-finding process engaged in by the Commission.

In the present case, the process the Commissioner undertook did not involve relying on facts “not available”. It is simply that the Commissioner formed a different view of the facts to the view formed by the investigator. This does not signify any disrespect to the investigator, or deficiency in the investigation. Rather, in making her findings of fact, the Commissioner had advantages that the investigator did not have, namely the receipt of sworn evidence tested by cross-examination, at a hearing, where other witnesses gave evidence to the contrary, allowing the Commissioner to form an impression and draw conclusions about the evidence of each witness, in the overall context of the case.

Insofar as the Appellant contends that the Commissioner permitted the Respondent to rely on facts “not available” or not known to the Appellant at the time the Respondent was dismissed, the contention is misconceived. There is a well-established principle that facts existing at the time of dismissal, which may not have been known to one or other of the parties, may be relied on to establish the validity of a reason for dismissal and other matters relevant to determining whether a dismissal is unfair. The principle is sometimes referred to as involving “after acquired knowledge”. A classic example was provided by Von Doussa J in Lane and Others v Arrowcrest Group Pty Ltd[62] (Lane v Arrowcrest) where his Honour said that if after-acquired knowledge of facts in existence at the date of a dismissal could never be used to justify retrospectively, a dismissal, such a principle would have “strange and … astonishing consequences”. His Honour went on to give an example of such a consequence if “the dismissal of an accountant who had held a position of trust with the employer could not be justified on the ground of dishonesty if it were discovered after the dismissal that he had been systematically embezzling money from the employer”. In that case, his Honour was considering the term “harsh, unjust or unreasonable” – albeit in a different context – and went on to state:

“…it is open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances that were in existence when the decision was made…Whether the decision can be so justified will depend on all the circumstances.”

The principle in Lane v Arrowcrest was unanimously endorsed by High Court in Byrne v Australian Airlines Ltd[63] (Byrne) and has been applied consistently in decisions of the Commission. While the principle has generally been applied in relation to the validity of a reason for dismissal, it has been extended to other questions the Commission is required to determine in under s. 387 in deciding whether a dismissal is harsh, unjust or unreasonable.[64] In our view the principle is equally applicable to the consideration of other foundational matters the Commission is required to determine under s. 385 of the Act, and related provisions, including s. 385(a) in relation to whether a person has been dismissed, within the meaning in s. 386. It would be counter intuitive for the Commission to prevent an employer or a person who asserts unfair dismissal, from relying on relevant facts, that establish the jurisdiction of the Commission to make a finding as to whether a dismissal is or is not unfair, simply because the other party did not know of the facts or had incorrectly analysed facts that were known at the relevant time.

Just as it would be astonishing for the employer of an embezzling accountant to be prevented from relying on dishonesty discovered after a dismissal took effect, it would be equally astonishing if, for a person who was dismissed on the grounds of redundancy, there was a rule making it impermissible to rely on knowledge of the employer taking steps to place an advertisement for a similar position before or at the time the dismissal took effect, because that knowledge was subsequently acquired.

From the cases dealing with the use in unfair dismissal proceedings of after acquired knowledge of facts in existence at the time of the dismissal, the following principles can be distilled:

The Commission is bound to determine, based on all relevant facts, whether a person making an application for an unfair dismissal remedy, has been unfairly dismissed within the meaning in s. 385 of the Act and related provisions, by reaching a state of satisfaction in relation to each of the following matters, consistent with the provisions of the Act defining those matters:

a)   the person has been dismissed;[65]
b)   the dismissal was harsh, unjust and unreasonable;[66]
c)   the dismissal was not a consistent with the Small Business Fair Dismissal Code;[67] and
d)   the dismissal was not a case of genuine redundancy.[68]

In relation to the question of whether there was a valid reason for a dismissal posed by s. 387(a) the Commission is not confined to the reason advanced by the employer but must determine whether a dismissal was for a valid reason by reference to all relevant facts.[69] This principle also applies to other matters required to be considered under s. 387 of the Act[70] and to matters in s. 385 and related provisions.
It is open to a person who has been dismissed to prosecute an application for an unfair dismissal remedy by reference to facts not known to the person at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the person was made.[71]
It is open to an employer to defend an application for an unfair dismissal remedy, by reference to facts not known to the employer at the time of the dismissal, and discovered after the dismissal, to the extent that the facts are relevant to any of the matters in s. 385 and related provisions, provided those facts concern circumstances that were in existence when the decision to dismiss the employee was made.[72]
An employer who has dismissed an employee, or a person who has been dismissed, may also rely on a correct analysis of facts concerning circumstances that were in existence at the time of the dismissal, but were incorrectly analysed, to respectively defend or prosecute an application for an unfair dismissal remedy.[73]
If facts relating to the dismissal are not clear, an unreasonable failure by the employer to establish those facts before dismissing an employee, or conversely, dishonest concealment of facts by the dismissed employee, is relevant to whether the dismissal was unfair.[74]
The Commission is bound to afford the parties procedural fairness in the hearing and determination of an unfair dismissal application, including in relation to evidence of facts not known to one or other of the parties at the time of the dismissal or facts which emerge during proceedings.[75] Matters that may be relevant to whether procedural fairness is afforded include that the party whose interests will be adversely affected if the facts are accepted or rejected, has a reasonable opportunity to be heard, to cross-examine persons giving evidence seeking to establish facts and to call evidence to rebut or contradict evidence relevant to those facts.
In the present case, the Commissioner could not have proceeded to consider whether the dismissal of the Respondent was unfair, without first finding that the Respondent was dismissed. The significance of this finding, and the need for it to be correct to found the Commission’s unfair dismissal jurisdiction, is a matter that supports the extension of the principle that the Commission may consider facts in existence at the time of the putative dismissal, regardless of whether they were known to one or other of the parties at that time, to the question of whether the person seeking an unfair dismissal remedy, was dismissed. Finally, it is often, but not always, the case that in circumstances where employment ends by an ostensible resignation following an altercation at work, the question of whether an employee has resigned employment or was dismissed, is inextricably linked to any subsequent consideration of whether the dismissal was unfair, by facts that are common to both questions. This is a further basis for the entire factual matrix, as it existed at the time of the putative dismissal, to be considered on both questions.

Findings in relation to appeal grounds

As we have noted, the Appellant’s complaint in appeal grounds 1 – 3 is that its witnesses variously said in the investigation conducted by Mr Heness and in their evidence to the Commission, that during the altercation on 28 August 2023, the Respondent said, “I quit”, and that during the investigation the Respondent simply denied saying that she quit, and later changed her position during the hearing, claiming that she said, “this is shit” and was misunderstood because of her Scottish accent.

According to the Appellant, the approach taken by the Commissioner in accepting the Respondent’s evidence on this point involves an error of principle, because the Commissioner accepted an argument that was not raised by the Respondent during the internal investigation process and was advanced for the first time during the hearing. In oral submissions in the appeal, Mr Sandroussi for the Appellant contended that while the Commission is bound to consider all the evidence, this is on the proviso that the evidence concerns circumstances in existence when the Respondent’s employment ended. In this regard, Mr Sandroussi submitted that:

“That evidence wasn’t in existence, wasn’t before us. Had Ms Campbell, for example, in reply to Mr Heness’ inquiry about the quit, had she raised the possibility that oh I might have been misheard, I might have said this and she misheard me because Pesi always mishears me, that would have been something that Mr Heness would have considered - he would have inquired and considered, but it wasn't put to him. It wasn't available for him at the time when the decision was made.”[76]

As will be apparent from our summary of the principles relevant to after acquired knowledge, to the extent they are underpinned by this proposition, the Appellant’s grounds of appeal are unsustainable. Contrary to the Appellant’s submission, the Commissioner was not constrained from considering facts which were not known to the Appellant at the time the Respondent was dismissed and did not apply the wrong test. All the facts that the Commissioner relied on to conclude that the Respondent did not resign her employment on 28 August 2023, and that it is likely the Respondent did not say “I quit” during the altercation which resulted in her walking out of the office and leaving the workplace, were in existence at the time the Respondent’s employment ended. The fact that the Appellant’s managers did not know about the existence of these facts did not prevent the Commissioner from relying on them to find that the Respondent was dismissed. To the extent that appeal grounds 1 – 3 rely on the proposition that the Commissioner erred by having regard to matters not known to the Appellant at the time the Respondent’s employment ended, we reject them.

We also note that the Appellant’s staff and managers were aware of the facts the Commissioner referred to. The Respondent has a pronounced Scottish accent. The Respondent’s evidence that the inability of her work colleagues to understand her during the period of her employment was a standing joke, was uncontested. On the Appellant’s own case, the altercation on 28 March 2028 was heated, and the Respondent raised her voice, increasing the likelihood that she was not understood. In our view it is more probable than not that the Respondent’s work colleagues had difficulty understanding some of the things she said on 28 August 2023. This supports the Commissioner’s finding that the Respondent was misunderstood during the altercation on that date.

In relation to the other matters the Commissioner is said to have failed to consider specified in ground 1, we note that the Commissioner had evidence that mitigated these matters including that the Appellant had not previously raised an issue with the Respondent’s conduct or work performance, the Respondent had worked additional time to complete her work without additional remuneration and was dealing with Ms Josiane Jackson being on leave and new customers. It is also the case that at the time Mr Heness sent the “Outcome Letter” to the Respondent on 11 September 2023 the following events had occurred:

The Respondent left the Appellant’s premises on 28 August 2023, after having a discussion with Mr Heness about the altercation and was upset to the extent that on his own evidence, she was told by Mr Heness to “try to calm down and get home safely”.
During the discussion with Mr Heness the Respondent did not resign or indicate that she had resigned or intended to do so.
On 28 August 2023, the day she purportedly resigned, the Respondent sent a medical certificate to Mr Heness obtained on that date, covering a two-week period commencing on 28 August and sent a formal complaint about the incident, to Mr Heness on 30 August.
In response to an email sent by Mr Heness on 4 September 2023 asking for clarification of specified points the Respondent confirmed (on 5 September) that she had not resigned and provided reasons as to why she would not have taken this step.
On 8 September the Respondent sent an email to Mr Heness to arrange to return to work.

These are all matters to which Mr Heness could and should have had regard, before deciding to send the Outcome Letter purporting to accept the Respondent’s resignation. His failure to do so, and his decision to send the outcome letter, resulted in the termination of the Respondent’s employment and the Commissioner’s conclusion to this effect was open on the evidence before her.

In relation to ground 2, we observe that not only is the Commissioner’s consideration of facts that became apparent after the dismissal occurred correct, but the Appellant’s assertion that the Commissioner relied on facts that only became apparent “at the hearing”, is wrong. The Respondent’s assertion that what she said during the altercation on 28 August may have been misunderstood, was set out in the witness statement filed by the Respondent on 30 November 2023, in relation to merits and the Appellant’s jurisdictional objection, which the Respondent was required to file before the Appellant lodged its material on 14 December 2023. In her statement of evidence, the Respondent said that:

“I lifted the incomplete Run Sheets paperwork from my desk and placed them on Pesi Jackson’s
desk saying, ‘this is shit’, ‘you can do this’ and ‘I’m leaving to tell Mark’. At no point during the
altercation with Pesi Jackson did I ever state that I was resigning or terminating my employment.
By way of background, Pesi Jackson, Operations Manager has demonstrated on an ongoing basis since her employment that she has an ethnic Samoan background she repeatedly mishears or misinterprets most of my communications at work as I have a Scottish accent. By example there is a standing joke in the office from one of the misheard comments that I had said ‘a filled roll’, which differed greatly from what I did say. Often when a mishearing of my comments occurred, I would just say ‘another filled roll thanks’. Many other times she would just throw up her hands and laugh out loud as she had no idea as to what I had just said.”[77]

Accordingly, the Appellant was on notice prior to the first instance hearing that the Respondent’s evidence would be that she stated: “this is shit” and denied saying she was resigning or terminating her employment. While the Respondent did not specifically assert in her witness statement that “this is shit” could have been misheard as “I quit” the Appellant was also on notice that the Respondent had raised issues with her colleagues understanding her Scottish accent. At the first instance hearing, the Appellant objected to the evidence being given and was heard by the Commissioner in relation to the objection. The objection was advanced on the same erroneous basis as the grounds of appeal concerning this matter. The Commissioner correctly ruled that the evidence should be admitted, and the Appellant had an opportunity to cross-examine the Respondent in relation to her contention that she could have been misunderstood during the altercation and took advantage of that opportunity. The Appellant cannot complain that procedural fairness was not afforded in relation to the evidence being received by the Commissioner. Further, the Appellant knew well before the Respondent’s employment ended, and she was advised of this in the outcomes letter, that she specifically denied the assertion that she had resigned her employment.

Ground 2 also asserts error of fact and essentially restates the Appellant’s complaint about the Commissioner’s assessment and weighing of the evidence for and against the two versions of what was said by the Respondent during the altercation. The Appellant again takes issue with the Commissioner’s acceptance that the Respondent said “this is shit” instead of “I quit” during the altercation and was misunderstood because of her Scottish accent. This asserted error is repeated in other grounds of appeal.

We do not accept that the Commissioner’s assessment of the evidence on this point discloses an error of fact, much less a significant error that vitiates her findings. The audio recording of the hearing before the Commissioner indicates that the Appellant’s witnesses had difficulty understanding the questions they were asked by the Respondent during cross-examination. To emphasise this issue, at paragraph [45] the Commissioner set out an exchange between Ms Pesi Jackson and the Respondent during cross-examination evidencing communication issues and said that it was clear that Ms Jackson was struggling to understand what the Respondent was saying during that exchange. The Commissioner went on to conclude that:

“[46] Having observed the interactions between Ms Campbell and Ms Pesi Jackson during the hearing, and noting that the discussion at this point was heated, I consider it is highly likely that Ms Campbell as misheard. Viewed objectively, and noting the inconsistencies observed in Ms Josiane Jackson’s eviidence, I accept Ms Campbell’s submission that she said ‘this is shit’, and that it is likely that Ms Pesi Jackson may have heard this as ‘I quit’.”

We agree with the Commissioner’s assessment. We also heard and observed the Respondent speaking during the hearing of the appeal, and noted that she has a strong Scottish accent, which at times, made it difficult to understand what the Respondent was saying. We do not doubt that the potential for confusion was heighted during the altercation on 28 August 2023, given that we are satisfied that voices were raised, regardless of who spoke in a raised voice. While we heard and observed Ms Campbell in the appeal, the Commissioner had the advantage of hearing and observing the evidence given in the hearing and Ms Campbell’s exchanges with witnesses for the Respondent in cross-examination, specifically Ms Josiane Jackson and Ms Pesi Jackson. There is no basis for finding that the Commissioner misused the advantage she had in this respect.

The Commissioner was also correct in her assessment of the inconsistencies between the written and oral evidence of Ms Josiane Jackson about what the Respondent said before she left the office. Mr Sandroussi asked Ms Pesi Jackson questions in oral examination in chief, to supplement a statutory declaration and an email setting out her evidence. At the point Ms Pesi Jackson gave her evidence, Ms Campbell had given evidence in relation to the alleged misunderstanding about what she may have said during the incident on 28 August 2023. Mr Sandroussi did not seek to adduce oral evidence from Ms Pesi Jackson (or Ms Josiane Jackson) about the possibility of such a misunderstanding. Despite Ms Josiane Jackson being asked twice by Mr Androussi to recount her version of what was said during the altercation, she did not state on either occasion, that the Respondent said “I quit” before walking out of the office. Instead, Ms Josiane Jackson made consistent statements to the effect that the Respondent said she had had enough, was leaving and was going to see Mr Heness.

It is notable that the inconsistency in Ms Josiane Jackson’s evidence arose in response to questions from the Appellant’s representative Mr Androussi during her evidence in chief, and not under cross-examination. Further, at the time she gave her oral evidence, Ms Josiane Jackson had been shown her email to Mr Heness of 28 August 2023 and her statutory declaration signed on 14 September 2023 in which she stated that the Respondent said: “I quit”. The Appellant cannot complain that inconsistent evidence given by its own witness, in response to questions posed by its representative was taken into account by the Commissioner in her overall assessment of what was said during the altercation on 28 August. Further, given that the Respondent was represented by the head of its legal department, it was not for the Commissioner to question the witness or to seek clarification from her with respect to that inconsistency. It was open to the Commissioner to have regard to the fact that Mr Josiane Jackson’s oral evidence was inconsistent with an email she prepared on the date the altercation occurred[78] and the statutory declaration which Ms Josiane Jackson signed on 14 September 2023.[79]

It is also the case that Ms Campbell put a proposition in cross-examination to Ms Pesi Jackson to the effect that she had misunderstood words she said in the past and Ms Pesi Jackson responded by asking: “what was it you were saying to me at the time you were screaming at the top of your voice” at which point the cross-examination descended into a debate about who was screaming, which required the Commissioner’s intervention. Mr Sandroussi did not revisit this matter in re-examination.

Further, it is relevant that Mr Heness obtained statutory declarations from Ms Pesi Jackson, Ms Josiane Jackson and Ms Parker after he had sent the outcomes letter on 11 September 2023 and after the Respondent had filed her application for an unfair dismissal remedy on 12 September 2023. At that point there was no direction from the Commission requiring the Appellant to file its material for the first instance hearing. This is suggestive of the Appellant attempting to establish it did not dismiss the Applicant rather than to obtain more detailed statements reflecting the recollections of the witnesses about the altercation. The Commissioner noted the timing of the statutory declarations and was entitled to consider that in her weighing of the evidence about the inconsistency between the oral and written evidence of Ms Josiane Jackson. We also observe that Mr Heness is senior to Ms Pesi Jackson and if the Respondent had intended to resign it would have been appropriate for her to inform Mr Heness of that fact. The Respondent left the office where she was working and spoke to Mr Heness about the altercation she had just engaged in, and did not inform him that she had resigned. The Commissioner was correct to have regard to this.

Also, in relation to appeal ground 2, we do not accept the Appellant’s contention that evidence of the possible misunderstanding because of the Respondent’s Scottish accent, was irrelevant to the issue the Commissioner was required to determine. In the first instance proceedings, the Appellant raised a jurisdictional objection asserting that the Respondent resigned, and the Respondent disputed the resignation and raised the possibility of being misunderstood in reply to the evidence of the Appellant’s witnesses that she stated “I quit” during the altercation on 28 August. The evidence was directly relevant to the question of whether the Respondent was dismissed. Accordingly, no error arises based on relevance.

The question on appeal is whether the findings made by the Commissioner were reasonably open[80] and her findings of fact should be accepted unless it can be shown she palpably failed to use, or misused her advantage, or acted on evidence inconsistent with facts incontrovertibly established by the evidence, or which are “glaringly improbable”.[81] There is no indication that the Commissioner erred in this respect and we do not accept that there is an error in the Commissioner’s acceptance of the Respondent’s evidence on this point.

With respect to ground 3, for the reasons set out above, we reject the contention that the Commissioner was guided by irrelevant matters and find that the question of what occurred during the altercation on 28 August 2020 was centrally relevant to the matters the Commissioner was required to determine. The matter raised in ground 4 is does not indicate an error of fact that was of any significance. The Commissioner’s view that Ms Pesi Jackson “inserted herself into the conversation” and that this was the trigger for the altercation, is not determinative of whether the Respondent resigned her employment. Nor is the issue of whether Ms Pesi Jackson had a right to join in the conversation. The matter of central relevance is whether the Respondent’s actions during the altercation and thereafter, amounted to her leaving employment voluntarily, rather than who initiated the altercation.

We disagree with the assertion in appeal ground 5 that the finding that the Respondent did not quit and was dismissed, is against the weight of the evidence before the Commissioner. To decide whether the Respondent resigned her employment, the Commissioner correctly considered not only the altercation on 28 August 2023, but also the conduct of the parties after the alleged resignation. That conduct included Mr Heness disregarding evidence of communications from the Respondent after she left the workplace on 28 August 2023, which denied the assertion that she had resigned. In our opinion, the finding the Commissioner made in relation to the circumstances in which the Respondent’s employment ended was reasonably open to her on the evidence and there is no error on this ground. The asserted error is simply the Appellant taking issue with the weight the Commissioner placed on competing evidence and identifies no error of fact, much less a significant error that vitiates the decision. This is so regardless of the number of witnesses who gave evidence for the Appellant at first instance.

We also reject the contention in appeal ground 5 that the Commissioner erred by relying “heavily” on the Full Bench decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[82] (Tavassoli). Tavassoli concerns the application of s. 386(1) of the Act to cases where an applicant for an unfair dismissal remedy, has prima facie resigned their employment and there is a question as to whether the resignation is effective (because it was given in the heat of the moment or under mental distress or confusion) or was forced (by conduct or a course of conduct engaged in by the employer), so that the employment was terminated on the initiative of the employer. The Appellant’s contentions about this matter are also misconceived. Firstly, Tavassoli is not concerned with whether an employee who ostensibly resigns during an altercation at work, is responsible for the altercation, other than in relation to the question of whether the resignation was effective. An employee who starts an altercation and is entirely responsible for a heated exchange during which he or she ostensibly resigns, may nonetheless be found to have been dismissed if the resignation was not effective on one of the bases described in that case.

Secondly, in the present case, there was neither an ostensible nor an actual resignation within either of the limbs of s. 386(1) as discussed in Tavassoli. Rather, there was competing evidence as to whether the Respondent resigned. The Commissioner concluded, based on the evidence before her, that the Respondent did not resign. Having reached that conclusion, the Commissioner then considered the hypothetical alternative that even if the Respondent did say that she quit during the altercation the resignation would not have been effective.

The Appellant has not made out an arguable error with respect to the Commissioner’s factual finding that the Respondent did not resign and that her employment was terminated on the Appellant’s initiative. The fact that the Appellant asserts that the Respondent’s conduct entitled it to dismiss her in any event, is not an answer to the question of whether the Appellant dismissed the Respondent. Based on the evidence, it was open to the Commissioner to find that the conduct of Mr Heness in sending the outcome letter, in the face of clear communication from the Respondent that she had not actually resigned, was a termination of the Respondent’s employment at the initiative of the employer and there was no error in the Commissioner’s conclusion. As the factual finding made by the Commissioner on this point is inextricably bound to the question of whether there was a resignation, it is unnecessary to deal with ground 5 insofar as it asserts error in relation to the hypothetical counterfactual scenario that the Respondent resigned.

We do not accept that the Commissioner erred as asserted in appeal ground 7, by inappropriately relying on the fact that Ms Donna-Marie Parker, who was present during the altercation on 28 August 2023, did not give evidence at the hearing or provide a witness statement. The evidence in relation to Ms Parker’s non-participation in the proceedings was in the form of an email sent from Mr Heness to Mr Sandroussi dated 20 November 2023 attaching screenshots of a text message from the Respondent’s husband sent to Ms Parker stating: “I’m coming for you. You lying bastard. Watch your back” and advising that Ms Parker, is “fearful now that she has been threatened directly, and I do not blame her”. While the email sent by the Respondent’s husband was completely inappropriate, this was acknowledged by the Respondent prior to the hearing. We are also of the view that it was open to the Commissioner to conclude that in all the circumstances, the explanation for Ms Parker not giving evidence was not satisfactory. The Appellant could have sought to have a notice requiring Ms Parker to attend issued by the Commissioner or raised the issue of Ms Parker’s concern about the email with the Commissioner prior to the hearing, to allow for Ms Parker’s concerns to be addressed.

Further, given the Commissioner’s findings about the misunderstanding in relation to what the Respondent said during the altercation on 28 August 2023, the proposition that the evidence of Ms Parker would have changed the Commissioner’s view of this matter is entirely hypothetical. It is equally probable that if Ms Pesi Jackson and Ms Josiane Jackson were confused by the Respondent’s accent, Ms Parker was similarly confused. In relation to appeal ground 8, for the reasons we have set out above, the Commissioner’s refusal to place weight on the email from Mr Heness to Mr Sandroussi purporting to advise that Ms Parker was fearful of giving evidence because of an email she received from Mr Campbell, was not an error. Accordingly, we reject appeal grounds 7 and 8.

Finally, with respect to appeal ground 6, we are also of the view that the Commissioner’s assessment of compensation was not erroneous and indicates an entirely orthodox application of the relevant principles. There was evidence before the Commissioner to support the Respondent’s contention as to the time that she would have remained in employment. There was no error in the Commissioner accepting, for the purposes of calculating compensation, that the Respondent would have remained in employment until the date of her retirement. The Commissioner properly took that matter into account and made her assessment accordingly by adopting the well-established principles in Sprigg v Paul Licensed Festival Supermarket.[83] Contrary to the Respondent’s submission the fact that an employer may not have a history of unfairly dismissing employees, is not relevant to the calculation of compensation for the unfair dismissal of a particular employee. Nor is the question of whether the employer’s conduct was deliberate or in bad faith or malicious. There was no basis for a finding of misconduct such that a reduction in compensation should have been applied. We also reject appeal ground 6.

Further, we reject the contention that the Commissioner having regard for the size of the Appellant’s enterprise was unfair or was a denial of procedural fairness. The Appellant, via its Response to the application, raised the fact that it had only five administrative employees at the location where the Respondent was employed, as an explanation for any deficiencies in the way it dealt with the matter. This was a matter about which it was reasonable for the Commissioner to have regard, along with the other matters considered under s. 387.

Conclusion and disposition of appeal

The Commissioner considered and determined the application in accordance with the Act, and in an orthodox way. The Commissioner correctly found that: the Respondent had been dismissed; the dismissal was unfair; an award of compensation was appropriate; and calculated compensation in accordance with relevant principles. We conclude as follows:

Permission to appeal is granted in relation to grounds 1 – 3, because of the novelty of some of the contentions advanced by the Appellant in relation to the circumstances in which the Commission can consider after acquired knowledge in determining whether a dismissal is harsh, unjust or unreasonable.
We refuse to permission to appeal in relation to grounds 4 – 8.
The appeal is dismissed.

While not relevant to our decision to dismiss the appeal, we note that the Appellant was ordered to pay compensation to the Respondent in the amount of $32,000.02, to be taxed according to law, by 10 May 2024. The Appellant applied for a stay of the Commissioner’s decision and order in relation to compensation and that application was refused by decision issued on 8 May 2024.[84] At the hearing of the appeal on 14 June 2024, the Respondent informed the Full Bench that she had not been paid the amount of compensation ordered by the Commissioner. Mr Sandroussi for the Appellant stated that he was that he was “here” at the time the stay was refused, and had informed the Appellant that the amount ordered by the Commissioner was required to be paid by 10 May 2024. In fact, the decision in the stay application records the Mr Sandroussi, in his capacity as the manager of the Appellant’s legal department, made submissions in that matter.[85]

Mr Sandroussi, who given his role with the Appellant, can be taken to understand the implications of misleading the Commission, also informed us during the hearing of the appeal, that he would again raise the non-payment of the compensation amount with the Appellant’s payroll department “straightaway …today”.[86] The Full Bench accepted the statement made by Mr Sandroussi in this regard, and heard the appeal.

Notwithstanding the statement made by Mr Sandroussi to the Full Bench in the hearing of the appeal, as recently as 7 November 2024, the Respondent informed the Commission by email directed to the Chambers of the presiding member, that the amount of compensation had not been paid, and copied the Appellant into the email. The Respondent was informed, by correspondence from the Chambers of the presiding member, copied to the Appellant, of her right to enforce the order in a court.

It is a matter of significant concern that an Appellant seeking relief before a Full Bench of the Commission, is in apparent breach of the order of the Commission against which it appeals in circumstances where a stay of the decision under appeal has been refused. The concern is heightened by the fact that this Full Bench heard the appeal based on a statement made by the manager of the Appellant’s legal department that the non-compliance would be rectified. It is also of significant concern that the Appellant would apparently disregard advice from the manager of its legal department – which we have no reason to doubt was provided on 14 June 2024 – that it was in breach of the order, and had been in breach since 10 May 2023.

VICE PRESIDENT

Appearances:

Antoine Sandroussi for the Appellant.

Hearing details:

2024.
Video using Microsoft Teams.
14 June.

[1] [2024] FWC 913 (Merits Decision).

[2] [2024] FWC 1041 (Compensation Decision).

[3] PR773759.

[4] [2024] FWC 1204.

[5] Merits Decision at [8].

[6] Merits Decision at [22].

[7] Merits Decision at [29].

[8] Merits Decision at [31].

[9] Merits Decision at [32].

[10] Merits Decision at [33].

[11] [2017] FWCFB 3941 at [47].

[12] Merits Decision at [41].

[13] Merits Decision at [42].

[14] Mertis Decision at [45].

[15] Merits Decision at [45].

[16] Mertis Decision at [48].

[17] Merits Decision at [49].

[18] Merits Decision at [50].

[19] Merits Decision at [52].

[20] Mertis Decision at [55].

[21] Thakur v Assetlink Services (11) Pty Limited [2023] FWC 2550; Kumar v Life Without Barriers [2022] FWC 2132; Li v Michael Vaux Pty Ltd T/A Malvern Tyre & Service[2024] FWC 510.

[22] Merits Decision at [58].

[23] Merits Decision at [61].

[24] Mertis Decision at [67].

[25] Mertis Decision at [70].

[26] Merits Decision at [75].

[27] Merits Decision at [76].

[28] Merits Decision at [79].

[29] Merits Decision at [84].

[30] Mertis Decision at [82].

[31] Merits Decision at [85].

[32] Merits Decision at [85].

[33] Merits Decision at [86].

[34] Merits Decision at [87].

[35] Compensation Decision at [7].

[36] (1998) 88 IR 21.

[37] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[38] Wan v AIRC (2001) 116 FCR 481 at [30].

[39] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[40] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].

[41] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24] – [27].

[42] (2000) 203 CLR 194.

[43] Ibid at [20].

[44] Ibid at [21].

[45] House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

[46] Ibid.

[47] Fair Work Act 2009 (Cth) s.400(2).

[48] Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43].

[49] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[50] Dafallah v Melbourne Health[2012] FWAFB 3540 at [25].

[51] Appeal Book at p. 51.

[52] Appeal Book at pp. 47 and 52.

[53] Appeal Book at pp. 77 and 105.

[54] Appeal Book at p. 49.

[55] Appeal Book at p. 50.

[56] Appeal Book at p. 63.

[57] Appeal Book at p. 77.

[58] Appeal Book at p. 51.

[59] Appeal Book page 49; Transcript of the appeal hearing at PN29.

[60] Appeal Book at p. 88.

[61] Galagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [111].

[62] (1990) 27 FCR 427; 99 ALR 45.

[63] (1995) 185 CLR 410.

[64] Virgin Australia Airlines Pty Ltd v DeVania Blackburn [2022] FWCFB 232 at [78]; Newton v Toll Transport Pty Ltd [2021] FWCFB at [66].

[65] Section 385(a) with reference to s. 386.

[66] Section 385(b) with reference to s. 387.

[67] Section 385(c) with reference to s. 388.

[68] Section 385(d) with reference to s. 389.

[69] Newton v Toll Transport Pty Ltd [2021] FWCFB 3457.

[70] Virgin Australia Airlines Pty Ltd v DeVania Blackburn [2022] FWCFB 232.

[71] Australian Meat Holdings Pty Ltd v McLauchlan Print Q1625, 5 June 1998; (1998) 84 IR 1.

[72] Ibid.

[73] Wheeler v Philip Morris Ltd (1989) 97 ALR 282 at 306 at 308.

[74] Lane v Arrowcrest ibid at 75.

[75] Newton v Toll Transport op. cit. at [66].

[76] Transcript of appeal hearing, 14 June 2024, PN16.

[77] Digital Court Book page 10 – 12.

[78] Appeal Book page 50.

[79] Appeal Book page 61.

[80] Fox v Percy (2003) 214 CLR 118.

[81] Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174 at [48].

[82] [2017] FWCFB 3941.

[83] (1998) 88 IR 21.

[84] [2024] FWC 1204.

[85] Ibid at [9].

[86] Transcript of appeal hearing.

Printed by authority of the Commonwealth Government Printer