Jessica Davis v Ambulance Victoria
[2022] FWCFB 131
•18 JULY 2022
| [2022] FWCFB 131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jessica Davis
v
Ambulance Victoria
(C2022/2945)
| VICE PRESIDENT HATCHER | SYDNEY, 18 JULY 2022 |
Appeal against decision [2022] FWC 956 of Deputy President Colman at Melbourne on 27 April 2022 in matter number U2022/3511.
Introduction and background
Ms Jessica Davis has lodged an appeal, for which permission is required, against a decision made by Deputy President Colman on 27 April 2022[1] to refuse Ms Davis an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Cth) (FW Act) in which to file an application for an unfair dismissal remedy in respect of the termination of her employment by Ambulance Victoria. The Deputy President determined that he was not satisfied, taking into account the matters prescribed by s 394(3), that there were the requisite exceptional circumstances in Ms Davis’ case to permit an extension of time to be granted. Ms Davis contends in her appeal that the Deputy President’s decision was in error on grounds which are outlined later in this decision.
The statutory framework applicable to the decision under appeal is that s 394(2) requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The relevant facts are as follows. Ms Davis was a paramedic employed by Ambulance Victoria. The COVID-19 Mandatory Vaccination Directions (No 4) (Directions) were made under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) on 29 September 2021. The Directions relevantly required that Ambulance Victoria take all reasonable steps to ensure that its paramedics not enter or remain on healthcare facilities on or after 15 October 2021 unless they had received at least a first dose of a COVID-19 vaccine or made a booking to receive a first dose by 29 October 2021. There was a further requirement for full vaccination (two doses) by 15 December 2021. If paramedics did not comply with these deadlines, they could not attend their workplace and perform their duties. Ms Davis failed to comply with this requirement and, as a consequence, was dismissed by Ambulance Victoria because she was incapable of performing her role. The dismissal took effect on 6 December 2021.
On 20 December 2021, Ms Davis filed an application under s 365 of the FW Act for the Commission to deal with a general protections dispute concerning her dismissal by Ambulance Victoria. In this application, Ms Davis contended that her dismissal involved contraventions of ss 340 and 352 of the FW Act. Ambulance Victoria lodged its response to the s 365 application on 20 January 2022. The application was the subject of a telephone conciliation conference conducted by a staff conciliator of the Commission on 23 March 2022. The matter did not resolve at the conference. Ms Davis alleges that the conciliator told her that her case appeared to be more suited to an unfair dismissal application. Later the same day, after the completion of the conference, Ms Davis discontinued her s 365 application and filed her unfair dismissal application. The latter application was filed almost three months later than the time prescribed by s 394(2)(a). It was accordingly necessary for Ms Davis to obtain an extension of time under s 394(3).
The decision
In his decision, the Deputy President considered and made findings about each of the matters prescribed by s 394(3). In relation to s 394(3)(a), the Deputy President found that Ms Davis had not provided an acceptable and reasonable explanation for the delay in filing her unfair dismissal application. In considering the reasons advanced by Ms Davis for the delay, the Deputy President said:
“[4] I do not consider that Ms Davis has provided an acceptable or reasonable explanation for the delay. First, the fact that Ms Davis initially filed a different application is not a good reason for delay. This simply reflects unawareness of the law or a change of mind on her part about which application to pursue. The fact that Ms Davis did not have legal representation is of no significance. There is ample information on the Commission’s website concerning unfair dismissal applications. People routinely represent themselves. Lawyers require the Commission’s permission in order to represent a client. Secondly, while I accept that Ms Davis had sustained an injury which caused her pain and for which she was prescribed medication, I do not accept that this prevented or seriously impeded the lodgement of her application. Indeed, she was able to lodge a timely general protections application despite these factors. Thirdly, I do not consider Ms Davis’s parental responsibilities to be a reasonable or acceptable reason for the delay. An F2 unfair dismissal application is a simple form that can be filed in a variety of simple ways. Finally, I do not regard the combination of these matters to be exceptional, or to amount to an acceptable reason for the delay. The reasons for the delay weigh against an extension of time.”
In relation to paragraphs (b), (d) and (f) of s 394(3), the Deputy President considered these to be neutral considerations.[2] As to paragraph (c), the Deputy President accepted that Ms Davis took action to dispute her dismissal by filing her s 365 application, and this weighed in favour of an extension of time.[3] In relation to the merits of the application (paragraph (e)), the Deputy President considered Ms Davis’ case that her dismissal was unfair because she had provided evidence of a booking to receive the vaccination on 30 November 2021, which she then brought forward to 26 November 2021, but had been unable to attend because of flu-like symptoms. She was then dismissed on 6 December 2021 notwithstanding that she remained unwell and had provided a new medical certificate.[4] The Deputy President also considered Ambulance Victoria’s case in response, which included that the deadline in respect of the first dose of vaccine was 29 October 2021, that it did not commence a show cause process until 15 November 2021, that Ms Davis only advised it on 23 November 2021 of an appointment to receive the first dose which she then cancelled due to illness, that Ms Davis had been directed to attend an appointment with a vaccinologist where she would be administered the vaccine if safe to do so but she did not attend the appointment, and that Ms Davis had been dismissed because she was unable to fulfil the inherent requirements of her job after having been given ample time to receive the vaccine.[5] The Deputy President found:
“[9] An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form a concluded view about the merits. However, I do not consider Ms Davis’s application to be a strong one. At the time of dismissal she was unable to perform the inherent requirements of her job. Nevertheless, in light of her submission that she was prepared to become vaccinated and that only illness prevented her from receiving the vaccination, I am prepared to accept that Ms Davis has at least an arguable case that her dismissal was unfair. On the other hand, [Ambulance Victoria] has a prima facie defence. Ms Davis was dismissed because she could not do her job. I consider the merits of the application to be a neutral factor.”
The Deputy President concluded that he was not satisfied that exceptional circumstances existed, either when the various circumstances were considered individually or together, and consequently did not grant an extension of time and dismissed Ms Davis’ unfair dismissal application.
Appeal grounds and submissions
Ms Davis’ notice of appeal did not identify any properly-formulated appeal grounds, but in substance made submissions which may be summarised as follows:
· The circumstances leading her to file the wrong application in the first instance were not measured to or against an “exceptional” benchmark or “reasonable explanation”, or they were not provided any weighting at all.
· Ms Davis had now provided evidence of the significance of the hindrance to her cognitive function and decision-making when she selected the stratagem of filing the s 365 application.
· In relation to the merits of her case, the Deputy President noted the appointment with the vaccinologist arranged for 1 December 2021, but did not note that the vaccinologist “had an obvious conflict of interest by way of significant funding from Pfizer to various committees he is on” and “was reported to say that he thinks anyone who doesn’t want to get vaccinated are akin to criminals”, which for “obvious reasons [made her] not comfortable seeing this person or confident in a reasonable unbiased assessment”. Additionally, given she was unwell, she would not have gone to appointments to protect others from infection and if she had, the vaccinologist should have labelled her as not eligible to have the vaccine due to illness.
· Ms Davis had never refused in writing to go to the appointment and would not have baulked at attending one in the future, and telling her to get the vaccine then if deemed fit to do so was a form of bullying.
· It was grounds for unfair dismissal that she had been dismissed for not getting the vaccine when unable to do so.
· The Deputy President had omitted pertinent facts that would have helped tip the balance of the merits of the case in her favour, included that Ambulance Victoria’s final date for providing evidence of a booking to receive the vaccine was 24 November 2021, which she complied with, and she was never given any particular date to actually have the vaccine after that date.
· A new factor which Ms Davis had only just realised was that her capacity to make an informed decision to have the vaccine was impaired by the continuous need to have strong painkillers with mind-altering effects. She should not have been dismissed until she had the capacity to make a lawful valid decision.
· Ms Davis was never provided appropriate alternative duties for her physical ability in light of her workplace injury, and she could have worked at home, vaccinated or not and had offered to do so. This worked to the merits of her case.
· At the time she made her s 365 application, Ms Davis was taking strong painkillers dues to the nature and severity of her workplace injury, which would often affect her judgment and ability to process new information. The circumstances surrounding her error in making this application were not given enough weight in the decision.
· There was no reason for her to question the wisdom of filing a s 365 application until she was informed at the conference that she should have filed an unfair dismissal application and, once she was advised this, she did everything possible to quickly lodge her unfair dismissal application.
· The matters she had raised had shown that permission to appeal should be granted, that there were reasonable circumstances to test against to make the extension possible, and the merits of the case had greater depth that what was depicted in the decision.
In her submissions, Ms Davis described with greater particularity the appealable errors which she contended were identifiable in the Deputy President’s decision. These were:
(1)The Deputy President did not refer to the issue of whether it was reasonable for Ambulance Victoria to direct Ms Davis to produce evidence of a booking to attend a work-related vaccination appointment or become vaccinated during a period when she had been certified unfit for work – a point which was raised in Ms Davis’ unfair dismissal application. This was a significant or centrally relevant matter that the Deputy President failed to consider in assessing the merits of the substantive application and, although the assessment of the merits does not involve a detailed consideration of the substantive case, it was still necessary to engage with the grounds of the application. This did not occur and, as a result, the discretion miscarried.
(2)In concluding that Ms Davis’ case was not a strong one, the Deputy President failed to acknowledge (in the penultimate sentence in paragraph [9]) that Ms Davis’ inability to “do her job” was temporary and related to her illness, and that her dismissal occurred in these circumstances was indicative of error. This constituted a failure to take into account a material consideration and constituted a significant error of fact.
(3)The finding that Ms Davis’ application was “not a strong one” was itself a significant error of fact, since it was plainly unfair to dismiss Ms Davis for not receiving a vaccination when she was certified as unable to receive it. The availability of an arguable defence did not mean that Ms Davis’ application was not a strong one.
(4)Even if no specific error could be identified in the decision, the exercise of the discretion to refuse an extension of time was manifestly unjust. Ms Davis was certified unfit for work at the time of her dismissal and certified as unable (temporarily) to receive a vaccination, but otherwise complied with the direction to produce evidence of a vaccination appointment and indicated an intention to receive the vaccination when well. On the face of it, her dismissal was unfair (or at least arguably unfair), she filed a general protections application within time and, as a result of comments made by the conciliator at the conciliation, withdrew that application and filed the unfair dismissal application. Ms Davis is now left in a position where she is unable to pursue either application, in circumstances where there is at least an arguable case, although she submits it is properly considered a strong case.
Ms Davis contended in her notice of appeal that it would be in the public interest to grant permission to appeal because Ambulance Victoria made a mistake regarding her employment which should be reviewed, she was effectively disabled and unfit for work when dismissed, the appeal might go to the broader issue of mandatory vaccination which was itself in the public interest, she was one of 93 employees of Ambulance Victoria terminated in circumstances where Ambulance Victoria was and is dangerously short of staff, and there were alternative measures available to keep staff and the public safe including the use of rapid antigen tests or working from home. Ms Davis expanded on these propositions in her submissions, contending that:
· she had an arguable case on appeal, and the Deputy President acknowledged that her substantive case had merit;
· in circumstances of relatively extraordinary, even if justifiable, legislation like mandatory vaccination legislation, it is important that unfair dismissal claims, particularly those with merit, are scrutinised carefully; and
· there is a public interest in ensuring that qualified paramedics are able to work, particularly in present circumstances where it is widely reported that the ambulance system in Victoria is “in crisis”, in part due to paramedic shortages.
Ms Davis sought to rely upon new evidence in her appeal, namely a medical certificate made by her general practitioner, Dr Trina Rowland, on 5 May 2022. The certificate relevantly states:
“Regarding the Fairwork Commission Unfair Dismissal Case and an application under extenuating circumstances for an extension.
This is to certify that I am the general practitioner for Ms Jessica Davis. She was involved in a work related accident on 22/9/21.
Following the accident, Jessica has experienced a lot of pain, limited neck and back movement and has needed strong pain killers. She has needed many medical appointments from multiple health professionals (neurosurgeon, neurologist, TMJ specialist, physiotherpists) [sic].
Jessica’s capacity for interpreting forms and completing forms was affected by her level of pain and the medication being used which had mind-altering side effects.
This would have affected Jessica’s ability to think clearly when attempting to file an application to the Fairwork Commis[s]ion on 20/12/21 when she incorrectly filed an F8 application.
Jessica’s ability to focus on important legal matters and complete paperwork for court applications remained reduced during March due to pain and strong pain killers which were finally stopped at this time
From 18/3/22 Jessica has had very reduced capacity for working and Jessica submitted her F2 application on 23/3/22.
I trust this explains the late F2 application for Jessica Davis has been due to unavoidable effects from her accident on 22/9/21 and the negative impact the accident has had on her functioning.
…”
Consideration
The Deputy President’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
This test in s 400(1) a stringent one.[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[9] 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.[10]
[14] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[11] Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[12] – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, as noted above, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.
[15] Although, as outlined above, Ms Davis has raised a wide range of matters in her appeal, her contention that the Deputy President’s decision was in error focuses on two findings: first, that Ms Davis had not provided an acceptable or reasonable explanation for her delay in filing her unfair dismissal application and, second, that her unfair dismissal application was not a strong one but was at least arguable. In neither case do we consider that any reasonably arguable contention of error has been advanced.
[16] The assessment required by s 394(3)(a) concerning the reason for the delay requires the exercise of a broad evaluative judgment. The judgment requirement is whether the reason for the delay, by itself or in combination with the other prescribed matters in s 394(3), points to the existence of the exceptional circumstances necessary to allow the grant of an extension of time. Here, the delay was caused by Ms Davis deciding to file a s 365 application in respect of her dismissal rather than an unfair dismissal application. That cannot be said to be unusual: in our experience, a change in course as to the cause of action being pursued in respect of a dismissal is a relatively common reason for the late filing of applications under the FW Act.
[17] The Deputy President took into account Ms Davis’ contentions that she had no legal representation, that her decision to file the s 365 application simply reflected “unawareness of the law”,[13] and that she had sustained an injury which caused her pain in the period immediately after her dismissal, but concluded that these matters considered together were not exceptional and did not amount to an acceptable reason for the delay. In our view, the Deputy President’s consideration of these matters, if anything, erred in favour of generosity towards Ms Davis’ position when regard is had to the following submission which Ms Davis advanced before him below:
“I initially sought free legal information surrounding my termination situation. The advice I received was that I could attempt the F8 or the F2 application. I was advised the F8 application was more challenging to prove but I felt my case was strong enough. The consultation that I had was short which included explaining my dismissal situation and then receiving some feedback. … At this point in time I was experiencing frequent episodes of pain … requiring pain relief that [a]ffected my concentration. I attempted to seek information from the group of paramedics who were also terminated from their employment. We helped each other to the best of our ability. I felt I didn’t have a lot of time to allocate to the FWC application process as I was very much distracted by the symptoms and management of my injury. However, at the time, my understanding was that the F8 application was more challenging but not inappropriate.”
[18] The above submission discloses that Ms Davis had access to some level of legal advice following her dismissal, was fully aware of the alternative courses of filing a s 365 application or an unfair dismissal application (and thus was not “unaware of the law”), and deliberately chose the former course despite knowing that it was “more challenging” than filing an unfair dismissal application. The delay was thus a direct consequence of the choice which Ms Davis made at the time and, contrary to the submissions now advanced, it was not the result of some “error” which Ms Davis made in deciding to file a s 365 application.
[19] Ms Davis has sought to emphasise in her appeal that she was under the influence of “mind altering” painkillers at the time she decided to file her s 365 application. This goes much further than the case advanced by her before the Deputy President, which merely referred to her pain-killing medication as affecting her concentration. The submission now advanced is counter-intuitive in circumstances where, as the Deputy President observed, Ms Davis was able to file her s 365 application in a timely fashion, and where this application constituted a rational response to her dismissal, was the result of a considered decision, and its contents disclose a basic understanding of the relevant law and that it was prepared with some care and attention to detail.
[20] As to the medical certificate which Ms Davis now seeks to be admitted into evidence should permission to appeal be granted, no reason has been advanced as to why medical evidence of this nature could not have been provided at first instance. In any event, the certificate must be approached with some scepticism and would, we consider, be assigned little probative value if admitted. The certificate is dated 5 May 2022 but purports to assess Ms Davis’ mental condition arising from her pain and medication as at December 2021. It is not identified whether Dr Rowland examined Ms Davis as to these matters during December 2021. The medication with “mind-altering side effects” is not identified. Dr Rowland appears to have an unusual degree of knowledge as to the numbering of the standard application forms used in the Fair Work Commission, and her final conclusion that the effects of Ms Davis’ accident in September 2021 “explains the late F2 application” appears to go well beyond legitimate medical opinion.
[21] In relation to the Deputy President’s assessment of the merits of Ms Davis’ unfair dismissal application under s 394(3)(e), the gist of Ms Davis’ case on appeal appears to be that her case was so self-evidently strong that this consideration should have weighed in favour of the grant of an extension of time. This cannot be accepted on the basis of the limited information concerning the respective cases of Ms Davis and Ambulance Victoria that was before the Deputy President. The effect of the Directions was that, in order to be in a position to perform her duties, by 15 October 2021 Ms Davis had to have received her first dose of COVID-19 vaccine or provided evidence of a booking to receive one by 29 October 2021. Ms Davis’ application provides no rational explanation for her failure to do either of these things. It appears that she was off work at the time due to a workplace injury sustained on 22 September 2021, but it does not follow that she was unfit to be vaccinated. After Ms Davis’ failure to be vaccinated by the latter deadline imposed by the Directions, Ambulance Victoria allowed her and other non-compliant employees a further period of 28 days to comply, during which they could access leave entitlements (since they could no longer lawfully perform their duties). Ms Davis did not comply with this deadline either, and no explanation for this is provided in her unfair dismissal application. Ambulance Victoria then issued her with a show cause letter. In response to this, Ms Davis made an appointment to receive the vaccine but then cancelled it on the basis that she had “flu-like symptoms”.
[22] Ambulance Victoria then arranged for Ms Davis to attend an appointment with a vaccinologist specialist on 1 December 2021. It is important to note that it was intended that this specialist would review Ms Davis’ health status and administer a first dose of the COVID-19 vaccine if he considered it safe to do so. Ms Davis failed to attend this appointment. She contends in her unfair dismissal application that her medical advice was that “the person must be 7-10 days after a fever and feeling well or symptom free”, but that does not explain a refusal to attend an appointment which would involve an assessment of her health and the administration of the vaccine only if it was safe to do so. Ms Davis’ dismissal followed this on 6 December 2021.
[23] We consider that, on the basis of the limited material before him, the Deputy President’s assessment that Ms Davis’ case was arguable but not a strong one was correct. The additional contentions concerning the merits of Ms Davis’ case now advanced in her appeal have not improved her position. In this respect, we note that Ms Davis now says that her reasons for not attending the appointment with the vaccinologist included that he could not provide her with a reasonable and unbiased assessment because he allegedly had a conflict of interest arising from funding from Pfizer to certain committees he was on and had allegedly said that “anyone who doesn’t want to get vaccinated are akin to criminals”. These matters, which were not referred to in Ms Davis’ unfair dismissal application, do not aid the credibility of her position.
[24] We do not consider any of the three contentions of appealable error identified by Ms Davis in respect of the Deputy President’s assessment of the merits of her application to be reasonably arguable. Dealing with these in turn:
(1)To suggest that because Ms Davis was unfit to attend work, she was unfit to attend a medical appointment concerning vaccination is a non sequitur. In any event, the Deputy President clearly considered and took into account Ms Davis’ contentions concerning her medical status at the relevant time in paragraph [7] of the decision. Whatever their merit, they did not alter the position that, from 15 October 2021, Ms Davis was unable to perform lawfully the inherent requirements of her job.
(2)Ms Davis misunderstands the penultimate sentence in paragraph [9] of the decision. The Deputy President’s reference to Ms Davis not being able to “do her job” refers to Ambulance Victoria’s contention that Ms Davis was dismissed because she was lawfully incapable of performing her duties as a result of not being vaccinated, not to Ms Davis’ temporary medical circumstances. Further, in stating this, the Deputy President was not making any finding about the matter, but rather identifying why he considered that Ambulance Victoria had a “prima facie defence” to Ms Davis’ application. It is inapposite in this context to contend that there was a significant error of fact since the Deputy President made no finding of fact.
(3)The contention that Ms Davis’ dismissal was plainly unfair, and thus she had a strong case, because she was dismissed for not being vaccinated at a time when she was certified as unable to receive the vaccination, is misconceived for two reasons. First, it takes no account of the fact that Ms Davis had been on notice since the Directions were made in late September 2021 that she would need to be vaccinated in order to be able to perform her duties lawfully. Second, the medical certificate dated 25 November 2021 attached to Ms Davis’ application certifies only that her vaccination would need to be delayed until she had returned a negative COVID-19 test and was symptom-free. It does not evidence that she was unable to be vaccinated as at the date of her dismissal on 6 December 2021.
[25] In the circumstances discussed above, the contention that the Deputy President’s determination not to grant a three-month extension of time was “manifestly unjust” has no prospect of success.
[26] We do not consider that the appeal raises any issue of law, principle or general application which would render the grant of permission to appeal to be in the public interest. Contrary to Ms Davis’ suggestion, the appeal does not raise any issue concerning the legitimacy of the Directions or the governmental policy approach which underlies them. To the extent that it is contended that Ambulance Victoria currently suffers from a shortage of paramedics, we do not perceive any rational connection between that and an appeal which is concerned with the individual circumstances surrounding the dismissal of a single paramedic in December last year. There is nothing in Ms Davis’ appeal from which it can be inferred that a determination of her appeal would have any implications for the circumstances of any other current or former paramedics employed by Ambulance Victoria.
[27] For the reasons stated above, we are not satisfied for the purpose of s 400(1) of the FW Act that it would be in the public interest to grant permission to appeal to Ms Davis.
Conclusion
Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
J Davis, the appellant, in person.
A Millar, solicitor, for the respondent.
Hearing details:
2022.
Sydney and Melbourne by video link:
8 July.
[1] [2022] FWC 956
[2] Ibid at [5]
[3] Ibid at [6]
[4] Ibid at [7]
[5] Ibid at [8]
[6] 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)
[7] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 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]
[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[9] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[10] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[11] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[12] [1936] HCA 40, 55 CLR 499
[13] [2022] FWC 956 at [4]
Printed by authority of the Commonwealth Government Printer
<PR743864>
0
7
0