Leon Wolff v Queensland University of Technology

[2021] FWC 6306

[2021] FWC 6306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365— General Protections

Leon Wolff
v
Queensland University of Technology
(C2021/4098)

DEPUTY PRESIDENT LAKE BRISBANE, 9 NOVEMBER 2021

Application to deal with contraventions involving dismissal – Jurisdictional objection – whether the Applicant was dismissed – where the Applicant and Respondent had entered into a Deed which provided for the Applicant’s retirement – the Applicant was not dismissed within the meaning of the Fair Work Act 2009 – the jurisdictional objection is upheld – the application is dismissed

[1] On 15 July 2021, Leon Wolff (the Applicant) made an application for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant claimed that he was dismissed by his employer, the Queensland University of Technology (QUT / the Respondent), in contravention of his workplace rights in Part 3-1 of the Act.

[2] The Applicant had been employed by QUT as an Associate Professor in its School of Law since 2015. By the end of 2019, the relationship between the Applicant and individuals within the Respondent, and by extension the Respondent itself, had deteriorated and the Applicant lodged a general protections claim with the Commission. Consequently, the parties – with the assistance of the Commission – attended a series of conferences which ultimately resulted in the execution of a Deed of Settlement and Release (the Deed) by the Applicant and the Respondent on 23 December 2019. In that Deed, the parties agreed that the Applicant would retire from his employment on 25 June 2021 or at an earlier date at the Applicant’s election. The Applicant enjoyed significant financial benefits under the Deed to the value of $695,506.86 (gross) and, on 25 June 2021, the Applicant’s employment ended, in accordance with clause 2(a)(i) of the Deed.

[3] The Applicant now contends that he did not enter into that Deed freely and that the Respondent forced his retirement. That is, that he was dismissed within the meaning of s.386 of the Act. The Applicant raised a number of issues in his submissions. However, it is important to note that the sole question before me is whether he was dismissed or not.

Preliminary matters

[4] Before considering that question, I must deal with a couple of preliminary matters.

[5] First, it worth mentioning that before the matter was scheduled for hearing before me, the Applicant wrote to the President of the Commission requesting that the matter be referred to the Court pursuant to s.608 of the Act. The President delegated his functions and powers to Deputy President Colman, who received submissions in respect of the referral and published his decision on 22 September 2021. 1 In short, the Deputy President refused to exercise his discretion to refer the matter to the Court. That decision also helpfully summarises the circumstances which have brought the parties to this point. I do not intend to repeat them there.

[6] Following Deputy President Colman’s decision regarding the s.608 matter, I issued directions for the filing of material in respect of the jurisdictional question of whether the Applicant was dismissed. I scheduled the Applicant’s current general protections application for hearing on 1 October 2021 by Microsoft Teams.

[7] Second, the Respondent sought permission to be represented by Corrs Chambers Westgarth (Corrs). The Applicant opposed the granting of permission under s.596 of the Act and on the basis that the solicitors were not briefed by persons who appropriately constituted the Respondent entity. Corrs indicated that they were properly briefed by the Respondent. It is not for me to look behind those instructions, in the absence of any direct evidence from the Applicant to show otherwise.

[8] The Respondent submitted that permission should be granted for them to appear because it would allow the matter to be dealt with more efficiently. This was particularly so given the complex and technical nature of the case brought by the Applicant as evidenced by the extensive and varied forms of relief sought and the multitude of allegations advanced in support of his claim. Furthermore, the complexity is compounded by the fundamental disagreement between the parties regarding the legal and factual matters to be determined by the Commission and the legal principles that apply. In short, it was submitted that the Commission would be assisted by the presence of the Respondent’s legal representatives to define and corral the issues in dispute and avoid unnecessary costs and time.

[9] On the basis of those submissions and, having regard to the fact that the Applicant is himself an Associate Professor of Law so would not be unduly prejudiced by the presence of the Respondent’s lawyers, I was satisfied that granting the Respondent permission to be represented would be of assistance in working through the issues in an efficient, focussed manner and to avoid unnecessary argument beyond the scope of the Commission’s responsibilities, purpose and power. Accordingly, I granted the Respondent permission to be represented.

[10] The third preliminary matter that I was required to consider was the Applicant’s request that I make orders under s.593(3)(c) of the Act to prohibit the publication of his name. Given the hearing took place via Microsoft Teams and no persons other than those involved in proceedings had sought permission to view the hearing, it was agreed that a finding in respect of the orders sought could be dealt with in this decision.

[11] Section 593(3) of the Act provides that the Commission may make the following orders in relation to a hearing if it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing.

[12] The Applicant accepted that to make the orders sought under s.596(3)(c) of the Act would be at the expense of the “paramount principle of open justice”. 2 However, the Applicant asserted that it was appropriate to depart from the ordinary course to preserve confidentiality in circumstances where it is necessary to secure the proper administration of justice or is otherwise in the public interest.3 The Applicant states that this is such a case, given that he has made several public interest disclosures. The Applicant stated that he did not seek such an order for himself but because confidentiality orders in such a case is a material public interest. Further, the Applicant asserts that an order is appropriate because of, among other reasons, the allegations he has made against another member of this Commission and that to have those allegations publicly ventilated may tarnish the public’s confidence in the Commission.

[13] The Respondent opposes the making of such orders. It outlined that for the Commission to exercise its discretion to award anonymity, and in doing so, depart from what otherwise should be open proceedings, it would have to be satisfied that there was compelling evidence of something that would in fact frustrate the administration of justice by unfairly damaging material or public or private interests, 4 and that publishing information that can be sensitive, personal or embarrassing is not sufficient.5 Further, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle of open justice.6 The Respondent submits that there is no such credible evidence to justify the exercise of a discretion to award anonymity in this case.

[14] In light of the authorities referred to by both parties, it is clear the Commission should only depart from the established principle of open justice if there is evidence of a compelling reason to do so, for example, where a failure to do so would in fact frustrate the administration of justice by unfairly damaging material or public or private interests. While the Applicant invites me to make such orders in the interest of all those individuals who purport to make public interest disclosures, I am not satisfied that he has advanced any compelling reason or presented any persuasive evidence demonstrating why the present circumstances warrant the exercise of my discretion and my departure from such an established and integral principle.
[15] Though I accept there may be cases in which the level of criminality alleged or the vulnerability of the whistle-blower warrants de-identification orders being made, I am not satisfied that the facts and issues presently before me paints such a picture. On that basis, I refuse to make the orders sought by the Applicant under s.593(3)(c) of the Act.

[16] I will now turn to the primary question before me, that is, was the Applicant dismissed from his employment?

The legislative framework

[17] This application was made by the Applicant under s.365 of the Act, which provides that if a person has been dismissed and they, or an industrial association that is entitled to represent their industrial interests, alleges that they were dismissed in contravention of Part 3-1 of the Act, the person, or industrial association, may apply to the Commission for the Commission to deal with the dispute.

[18] Section 368 of the Act goes on to stipulate how the Commission is to deal with an application purportedly made under s.365. Importantly, as held by the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford, to make a general protections claim under s.365, a person must have been “dismissed”. 7 If, as is the case here, the Respondent asserts that the Applicant was not dismissed within the meaning of the Act, that question is an antecedent dispute which goes to the Applicant’s entitlement to make their application.

[19] Section 386(1) of the Act relevantly provides thata person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or 

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. 

[20] The Full Bench outlined the relevant authorities considering what constitutes termination at the employer’s initiate in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli. 8 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.9 While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.10 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.11 Put another way, the employer’s conduct must have the probable result of bringing about the end of the employee’s employment or leaving the employee with no effective or real choice but to resign.12 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.13 In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”14

[21] Both parties had the opportunity to file material in respect of the jurisdictional objection. The Applicant made extensive submissions in writing and orally. The Respondent also made written and oral submissions and relied on the evidence of Georgina Alexandrou, Special Counsel from Corrs.

The Respondent’s material

[22] The Respondent contends that the Applicant was not dismissed by the Respondent and therefore the Commission has no jurisdiction, that this application is vexatious and made without reasonable cause, and accordingly, should be dismissed.

[23] The Respondent asserts that it is generally accepted that where employees voluntarily enter into deeds of settlement with their employers and resign in accordance with the terms of those deeds, that they have not been dismissed within the meaning of s.386(1) of the Act. The Respondent points to Hebbard v Murdoch Retirement Services Pty Ltd, in which it was held that an employee’s resignation in accordance with a deed of settlement with her employer was a termination by mutual consent and not a dismissal within the meaning of s.386(1) of the Act. 15 Similarly, in Ferry v Secretary of the Department of Parliamentary Services, it was held that an employee had resigned her employment and was not forced to do so by her employer because she had voluntarily entered into a deed of settlement that provided for her resignation. 16

[24] The Respondent submits that the Applicant in this matter was likewise not ‘dismissed’, but rather the evidence clearly demonstrates that his employment came to an end on 25 June 2021 by mutual agreement, in accordance with the Deed.

[25] The Respondent rejects the Applicant’s assertions that he had no real choice but to resign on the basis that the Applicant had a number of options open to him. He could have chosen not to settle his general protections application not involving dismissal (the 2019 Application) (and other applications and complaints that he had made) and proceeded to a hearing. A termination of employment would not have resulted from a hearing of the 2019 Application, nor from any of the other applications or complaints the Applicant was then pursuing. Alternatively, he could have pursued a settlement of the 2019 Application (and the other existing applications and complaints) on terms that did not include his resignation or retirement.

[26] The Respondent asserts that for present purposes, what is relevant is that the Applicant entered into the Deed which included a clause providing for his retirement. Under that Deed, he received substantial monies that would otherwise not have been payable to him. The Respondent asserts that in agreeing to the Deed, there was no termination at the employer’s initiative (constructive or otherwise). 17 Such settlements are commonplace.

[27] The Applicant, who is himself a highly experienced legal academic, had the opportunity to obtain independent legal advice prior to entering into the Deed and acknowledged that he had obtained or had the opportunity to obtain that advice in clause 10 of the Deed. Importantly, the Respondent avers, it must not be forgotten that the Applicant was directly involved in negotiating the terms of the Deed, which are multifaceted and specific to his personal and professional circumstances. He also enjoyed significant financial benefits under the Deed (to the value of $695,506.86 (gross)), most of which he would not have been paid had he not entered into the Deed.

[28] The Respondent states that the Applicant’s claims that he was coerced into negotiating a payout or executed the Deed under duress are scandalous and without merit. The Applicant states that a letter from Leanne Harvey, Vice President (Administration) and University Registrar of the Respondent to the Applicant, dated 13 December 2019 (the Directions Letter), contained threats which were aimed at forcing him to retire from his employment. The Respondent rejects that assertion and says that the Directions Letter contained a series of lawful and reasonable directions aimed at restoring normal working relationships between members of staff, including the Applicant. To this end, and contrary to what the Applicant alleges, the Directions Letter clearly contemplated the continuation of the Applicant’s employment. Whether non-compliance with the Directions Letter would have resulted in disciplinary action, and what the nature of that action might have been, is hypothetical and unhelpful to the current proceedings. Further, the Respondent submits that to the extent that the Applicant was aggrieved about the Directions Letter or any other issue, he could have pursued those grievances under the Respondent’s relevant workplace procedures. Nothing prevented him from doing this at any point prior to him voluntarily entering into the Deed.

[29] Another allegation made by the Applicant is in respect of comments he claims were made by another member of this Commission during the conciliation, which evinced the Respondent’s intention to “get rid” of him. The Respondent submits that whether the Member actually said what is alleged is irrelevant. Any advice the Applicant allegedly received during conciliation (even if true) would presumably have been made in a non-prejudicial environment and was not conduct of the Respondent. Accordingly, it is irrelevant to a consideration of whether the Applicant’s retirement resulted from the conduct or the course of conduct of the Respondent.

[30] The Respondent also rejects the Applicant’s claims that in light of these reasons, he was faced with immediate dismissal because he has adduced no evidence to support his assertion that he would have been dismissed had he not entered into the Deed.

[31] Furthermore, the Respondent suggests that the Applicant acted consistently with the proposition that the Deed was legally binding on multiple occasions prior to the lodgement of the present application. For example, in email correspondence:

•  on 21 June 2021, he requested the payment of the remaining sum of $406,044.38 owing under clause 4 of the Deed (which was paid); and

•  earlier, he emailed the Respondent’s former solicitors acknowledging the legal effect of the Deed after its execution, including by “affirming” the Deed after an alleged “repudiation” by the Respondent (which the Respondent denies) as late as 6 May 2020.

[32] The Respondent asserts that it is disingenuous for the Applicant to now suggest that he ought to avoid obligations he agreed to with the Respondent as set out in the Deed. In effect, the Applicant, having enjoyed significant financial benefits under the Deed, now seeks to unilaterally resile from his obligations under it. For present purposes, those obligations include an agreement to end his employment. The Respondent submits that the fact that the Applicant waited until after the end of his employment (and after the final payment was made) to raise, for the first time, the allegation that he signed the Deed under duress confirms the disingenuous nature of his claims.

[33] In all the circumstances, the Respondent thus submits that the Applicant clearly entered into the Deed voluntarily and not under duress or coercion. The terms of the Deed establish the Commission has no jurisdiction in this matter because there has been no termination of employment at the initiative of the Respondent, and thus, no dismissal within the meaning of s.386(1) of the Act.

Applicant’s material

[34] The Applicant provided extensive submissions in this matter. However, once it is appreciated that the issue before me is limited to whether the Applicant was dismissed within the meaning of the Act, it is apparent that many of his submissions were irrelevant. To the extent that his submissions are relevant to the question of whether he was dismissed, I have summarised them below.

[35] The Applicant claims that he was dismissed within the meaning of the Act. He states that the Respondent initiated his retirement because but for the Directions Letter, termination of his employment had never crossed his mind. On that basis, he says that his retirement was not genuine and it was obvious to the Respondent that he had no good reason to retire early. Secondly, the Applicant alleges that the Respondent forced his retirement because, by issuing, insisting upon and refusing to retract the Directions Letter, he was left with “no effective or real choice” but to execute the Deed. Thirdly, the Applicant asserts that the Respondent caused or attempted to cause him to accept the detriment of an early retirement (under ss.40-42 of the Public Interest Disclosure Act 2010 (Qld) (PID Act)). He claims that to do so is a crime that renders the Deed illegal by statute. Finally, the Applicant avers that, contrary to public policy, the Respondent executed the Deed (and secured the Applicant’s execution of it via the Directions Letter) with the intent of violating the provisions, purpose and policy of the PID Act, rendering the Deed void by common law. The Applicant says that his first two arguments address the definition of “dismissed” under s.386 of the Act, and the final two arguments identify the statutory and common law bases for the unenforceability of the Deed by the Respondent.

[36] The Applicant has also alleged that various crimes have been committed by individuals within the Respondent and others. Further, the Applicant asserts that the Deed was an illegal document. As to why he sought to affirm it (and in doing so, receive a substantial financial benefit), the Applicant submits he was entitled to do so because he was not the wrongdoer. He says the contract is only unenforceable by the wrongdoer, in his mind, that is QUT. The Applicant asserts that the force that he needs to show is merely illegal or illegitimate pressure, rather than having to show it as a matter of fact. It applies as a matter of statutory interpretation and on the objective documentary evidence before the Commission.

[37] In his submissions at the hearing, the Applicant stated that he was not using these words “duress” or “coercion” under the technical doctrine of the law of duress. He was describing his subjective experience. He further asserted that under the PID Act he was not required to show duress. The Applicant submits that all he must show is some type of legitimate nexus between the Respondent’s actions and the Deed.

Consideration

[38] It is worth first making some brief comments about the Directions Letter that the Applicant has described as a “threat”, or at the very least, gave rise to his alleged impression that he had no choice but to accept the terms of the Deed and leave his employment. I have read that document. It tells the Applicant that the Independent Investigator appointed to investigate the complaint submitted by him on 3 May 2019 had provided their report and that Ms Harvey had determined that with respect to the parts of the Applicant’s complaints which met the definition of a public interest disclosure, the requirements of the policy had been implemented and the other parts of the Applicant’s complaint had been dealt with under the Staff Complaints Policy. The letter states that it is Ms Harvey’s responsibility to determine what (if any) action is required as a consequence of the findings. Ms Harvey goes on to summarise the actions that QUT would take in response to the findings and then provides directions to the Applicant in respect of his own conduct.

[39] Some of these directions included an acknowledgement and acceptance of the investigation outcome (including to each of the people about whom the Applicant made complaints), a withdrawal of the allegations of criminal conduct and a direction not to make further allegations of criminal conduct to QUT staff, in circumstances where determining same was outside the scope of QUT’s procedures. That said, the letter notes that QUT did not wish to interfere with the Applicant’s right to make complaints to appropriate external law enforcement authorities if he held a genuine concerns. Ms Harvey made directions that the Applicant refrain from using QUT’s policies and procedures for inappropriate purposes and that he participate reasonably in workplace procedures designed to rebuild trust. The letter expressly states that these administrative directions are not disciplinary in nature, but rather “are directed only to achieving the above objectives, in particular a safe workplace for all members of staff”. She notes that QUT “regards your commitment to, and then compliance with, the above, as essential to the restoration of normal relationships within the Faculty and the protection of the health, safety and welfare of all concerned”. A failure to commit to, or comply with, the directions might lead to disciplinary action.

[40] I do not accept that this letter was anything other than reasonable management action taken in an attempt to move beyond a particularly tumultuous period between staff. It very clearly evinces an intention that the Applicant’s employment will continue and simply makes reasonable directions to allow that to occur. I thus reject the Applicant’s argument that this letter and the conduct of the Respondent or others in relation to it could constitute a threat or put the Applicant in a position where he had no option but to leave his employment.

[41] It is uncontentious that the Applicant signed the Deed which stipulated that the Applicant would retire from his employment on 25 June 2021 or at an earlier date at the Applicant’s election. The Deed also provided the Applicant with an entitlement to significant financial benefits, which were all paid. In clause 10 of the Deed, the Applicant acknowledged that he had obtained or had the opportunity to obtain legal advice in relation to the terms of the Deed. The Applicant’s employment then ended on 25 June 2021 as agreed by the parties.
[42] Prima facie, the Deed appears to be a valid final agreement. After extensive discussions, the parties had reached finality with respect to the terms of their separation and documented it in a Deed. There were no conditional elements or disputes about either the contents of the agreement or other matters. The Deed stipulated that the Applicant had either sought, or had the opportunity to seek, legal advice about its terms. It was then executed by both parties with the intention of being immediately bound to performance of those terms. Such an agreement is of the kind that would be binding pursuant to the principles set out in Hebbard v Murdoch Retirement Services Pty Ltd and Ferry v Secretary of the Department of Parliamentary Services. 18

[43] It cannot be forgotten that the Applicant himself is an Associate Professor of Law and would have an appreciation for the binding nature of the Deed. Furthermore, the Respondent paid the Applicant the monies owed pursuant that Deed and the Applicant acted in accordance with the Deed until all such monies had been paid.

[44] The Applicant now submits that he signed the Deed under duress. It is perhaps telling that he did not provide any evidence of that under oath. The Applicant is an experienced Associate Professor of Law and would have appreciated the difference between making a submission and giving sworn testimony. He provided no evidence around coercion and duress. The Respondent invites me to draw an adverse inference against the Applicant for not giving evidence about the matters that he seeks to advance, in line with the High Court’s decision in Jones v Dunkel. 19

[45] It is similarly telling that the Applicant took no steps to question the validity of the Deed until after he had been paid all monies owing to him under it. Significantly, the Applicant acted in a manner that confirmed the force of the Deed. He demanded the Respondent comply with the Deed in at least two pieces of correspondence between 23 December 2019 (when the Deed was signed) and July 2021 (when the final payment fell due). I reject his assertion that he was entitled to enforce the Deed, despite himself being of the view that it was invalid or unenforceable, because he perceived himself to be the innocent party.

[46] I also reject the Applicant’s assertions that the Deed was entered into in an illegal manner or for an illegal purpose, and that he was coerced or otherwise under duress to sign it. The Applicant plainly did not have to sign the Deed. He could have agreed to the reasonable management directions in the Directions Letter, he could have negotiated the terms of settlement which did not stipulate his retirement, or he could have continued pursuing his general protections claim. The Applicant has provided no evidence that demonstrates that the only course of action available to him was to sign the Deed and thus end his employment. On that basis, I reject the argument that the Deed has no force or should be seen as not binding. I also reject the Applicant’s attempts to suggest that he was dismissed by actions of his employer.

[47] Based on the evidence before me, I am satisfied that the facts of this case demonstrate that a binding agreement had been reached between the Applicant and the Respondent, which included the agreement by the Applicant to retire and thus end his employment with the Respondent. There is no evidence before me of duress, coercion or anything else that would make the Deed invalid or unenforceable. Accordingly, I find that the Applicant’s employment ended by an agreement entered into freely by both parties, not at the Respondent’s initiative or because of their conduct. I am therefore satisfied that the Applicant was no dismissed within the meaning of s.386 of the Act. Consequently, I have no jurisdiction in this matter.

[48] The jurisdictional objection is upheld.

[49] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735638>

 1   Wolff v Queensland University of Technology [2021] FWC 5967.

 2   Mac v Bank of Queensland Ltd[2015] FWC 774 [8].

 3   Hogan v Hinch (2011) 243 CLR 506 per French CJ; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) NSWLR 465.

 4   Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd [2016] FWCFB 8413; as affirmed in Construction, Forestry, Maritime, Mining and Energy Union v Mobilise Group Pty Ltd[2021] FWCFB 552.

 5   Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385 [3].

 6 Ibid [4].

 7   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].

 8   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 9   Ibid.

 10   Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 11   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 12   O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006) [23].

 13   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 14   Ibid; Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].

 15   Hebbard v Murdoch Retirement Services Pty Ltd[2014] FWC 9025.

 16   Ferry v Secretary of the Department of Parliamentary Services[2012] FWA 7509.

 17   Ferry v Secretary of the Department of Parliamentary Services[2012] FWA 7509 [113].

 18   Hebbard v Murdoch Retirement Services Pty Ltd[2014] FWC 9025; Ferry v Secretary of the Department of Parliamentary Services[2012] FWA 7509; see also Masters v Cameron (1954) 91 CLR 353.

 19 (1959) 101 CLR 298.