Lingli Zheng v Poten & Partners (Australia) Pty Ltd
[2022] FWCFB 132
•29 JULY 2022
| [2022] FWCFB 132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lingli Zheng
v
Poten & Partners (Australia) Pty Ltd
(C2022/2913)
| Vice President Hatcher COMMISSIONER HAMPTON COMMISSIONER WILSON | SYDNEY, 29 JULY 2022 |
Appeal against decision [2022] FWC 950 of Deputy President Beaumont at Perth on 28 April 2022 in matter number U2020/13343.
Introduction and background
Ms Lingli Zheng has applied, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) for permission to appeal a decision made by Deputy President Beaumont on 28 April 2022[1] to dismiss Ms Zheng’s application for an unfair dismissal remedy against Poten & Partners (Australia) Pty Ltd (Poten).
Ms Zheng’s appeal was the subject of a hearing before us on 4 July 2022 at which Ms Zheng appeared for herself and Mr K Brotherson of counsel appeared for Poten. Mr Brotherson appeared following our grant of permission for Poten to be legally represented pursuant to s 596(2)(a) of the FW Act.
Ms Zheng first applied to the Commission for an unfair dismissal remedy on 7 October 2020. Her application concerned her dismissal by Poten on 18 September 2020. Ms Zheng had been employed by Poten as an “LNG Consultant” (or “Natural Gas and LNG Consultant”) from 6 August 2018.
Poten initially objected that Ms Zheng was not a person protected from unfair dismissal on the basis that her salary exceeded the high income threshold and she was not covered by a modern award or an enterprise agreement. The Deputy President upheld this objection and dismissed Ms Zheng’s application,[2] but this was overturned on appeal with a differently-constituted Full Bench finding Ms Zheng was a person protected from unfair dismissal because she was covered by the Professional Employees Award 2020.[3] Upon the remit of the matter to the Deputy President for determination of the merits of the matter, the Deputy President found on 28 April 2022 that Ms Zheng was not unfairly dismissed.[4]
The decision under appeal
Poten was given permission to be legally represented in the proceedings before the Deputy President, with the hearing taking place over two days.
The nature of the contested matters required the Deputy President to make findings about witness credit. Taking into account that some time had passed between the events relevant to Ms Zheng’s dismissal and the giving of evidence about those events, the Deputy President generally preferred the evidence of Mr Will Pulsford, Poten’s Manager – Asia Pacific Consulting, over that of Ms Zheng, considering the latter’s evidence to at times be prolix and non-responsive.[5] The Deputy President also found some of Ms Zheng’s answers “lacked plausibility”.[6] On another matter, the Deputy President found Ms Zheng’s evidence involved inconsistent accounts and that she obfuscated, with her account being improbable in contrast to the account given by Mr Pulsford which she believed.[7] The Deputy President also made other findings unfavourable to Ms Zheng’s credit.[8]
The Deputy President made findings in her decision about each of the matters specified in s 387 of the FW Act. In respect of s 387(a), the Deputy President found that Poten had a valid conduct-related reason for dismissing Ms Zheng who, she found, “demonstrated resistance and refusal to undertake the work assigned to her”.[9] The Deputy President found that this was in breach of a fundamental term of Ms Zheng’s employment contract and that “she was in effect insubordinate and showed a lack of respect” to Mr Pulsford, who was her manager.[10] Describing Ms Zheng’s behaviour as “disruptive and negative”, the Deputy President concluded that she was unreceptive to Mr Pulsford’s feedback.[11]
In relation to the other s 387 matters, the Deputy President found that Ms Zheng was notified of the reasons for her dismissal and given an opportunity to respond (s 387(b) and (c)); and that she was not denied a support person during relevant discussions (s 387(d)). Further, the Deputy President found that that the behaviours for which Ms Zheng was dismissed were conduct-related and therefore did not fall under the umbrella of performance to which the consideration in s 387(e) is directed. She also found that the process leading to Ms Zheng’s dismissal was procedurally fair, taking into account Poten’s size and its access to dedicated human resource specialists (s 387(f) and (g)).
In consideration of s 387(h), the Deputy President took into account matters of procedural fairness raised by Ms Zheng, including that at least part of the process leading to dismissal included consideration of anonymous opinion and that there was an appeal by Ms Zheng against findings made as part of the disciplinary procedure. The Deputy President also noted the financial and other impacts of the dismissal on Ms Zheng and her length of service, but considered that the gravity of Ms Zheng’s conduct meant that there was no issue regarding disproportionality and did not render her dismissal harsh.[12] The Deputy President concluded that, having taken into account all the matters specified in s 387, she was satisfied that there was a valid reason for the dismissal and was unable to conclude that the dismissal was harsh, unjust or unreasonable.
Appeal grounds and submissions
Ms Zheng’s notice of appeal identifies four grounds of appeal, with numerous sub-grounds as follows:
“1. Deputy President Beaumont erred in granting permission for the Respondent to be represented by an external lawyer and in failing to have regard to the fairness between parties.
2.Deputy President Beaumont erred in failing to understand and take into account of all relevant evidence and made several significant errors of fact in her decision.
3.Deputy President Beaumont erred in finding that there was a valid reason for dismissal and in:
·Finding adverse in my credit merely based on my cross-examination and failing to take some material consideration into account;
·Accepting the Respondent’s witness as ‘a witness of truth’ when they were not exposed to effective cross-examination;
·Failing to have regard to my evidence concerning credit of the Respondent’s witness statements;
·Failing to understand the evidence and have sufficient regard to all relevant evidence.
·Regarding professional work-related discussion as refusal to take the task.
4.Deputy President Beaumont further erred in:
a)Finding my dismissal was not pre-determined;
b)Finding that I was notified of the reason and given an opportunity to respond;
c)Finding there was no breach of procedural fairness in my disciplinary process;
d)Deciding that the ‘warning about unsatisfactory performance’ criteria was not applicable;
e)Concluding that my line manager was not bullying me without providing any reason to support;
f)Concluding that my dismissal was not a result of the Respondent’s restructuring need without providing any reason to support;
g)Failing to have regard or have sufficient regard to all the relevant evidence and balance the evidence.”
Ms Zheng contends in her notice of appeal that the grant of permission to appeal would be in the public interest because the Deputy President’s decision manifests an injustice and her conclusions are counter-intuitive, and because there is an issue concerning public confidence in the administration of the Commission particularly in the circumstances where the Deputy President “has already made unfair decisions” in the matter. In her written outline of submissions and oral submissions, Ms Zheng expanded upon this by contending that:
· the Deputy President had made errors of fact in the “Background” section of her decision;
· a general guide is required from a Full Bench to determine a line between holding professional discussion or debating with a manager and resisting performing a task or disrespecting a manager; and
· the decision has affected confidence in the administration of justice amongst the Asian community working in the oil and gas industry and Chinese working as professional engineers in Perth.
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.[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] 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.[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[16] 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.[17]
For the reasons which follow, we do not consider that it would be in the public interest to grant permission to appeal in this matter.
Ground 1 – Permission for legal representation
The Deputy President’s decision to allow Poten to be legally represented was a discretionary decision made in accordance with established principle. On 7 December 2021, the Deputy President issued directions for the merits hearing which required any party wishing to be represented at the hearing to file and serve written submissions. On 5 January 2022, Poten made such submissions, arguing that having been granted permission in the jurisdictional hearing such permission continued to apply and could only be revoked pursuant to s 603 of the FW Act.[18] It also argued that a grant of permission was warranted under s 596(2)(a), submitting that efficiency would follow taking into account the complexity of the matter, and also under s 596(2)(b) on the basis that Poten would have difficulty representing itself. On 11 January 2022, Ms Zheng opposed the application, rejecting the inability of Poten to represent itself and submitting that she would be disadvantaged if Poten were granted permission.
On 4 February 2022 the Deputy President advised she had considered the submissions of each and that she was disposed to grant permission for legal representation being satisfied of the criteria within s 596(2)(a).
Ms Zheng has not demonstrated an arguable case of appealable error on the part of the Deputy President in granting permission to Poten for legal representation. Her complaint that the subject does not feature in the written reasons for decision is immaterial; the decision was the subject of email correspondence sent prior to the hearing and was mentioned briefly at the start of proceedings on 7 February 2022. The matter was determined in an orthodox procedural manner and, to the extent that permission was granted under s 596(2)(a), it was plainly open to the Deputy President to conclude, on the basis of the materials before her, the wide range of matters in contest, and her experience with the parties in the course of the jurisdictional hearing, that the matter had a significant degree of factual complexity such as to justify the assistance of legal representation. Ms Zheng has advanced no persuasive case before us that the grant of permission for legal representation to Poten prejudiced her ability to advance her case or otherwise caused any procedural unfairness.
Ground 2 – Failure to consider all evidence and significant errors of fact
Ms Zheng’s second ground of appeal does not specify the “relevant evidence” said by her not to have been understood or taken into account, nor the “several significant errors of fact” in the decision under appeal. This was not, independent from Ms Zheng’s submissions concerning her third ground, developed any further in the written outline of submissions which Ms Zheng submitted as part of her appeal. Accordingly, no arguable case of appealable error is discernible.
Ground 3 – Valid reason for dismissal
Ms Zheng’s outline of submissions and oral submissions developed her third ground of appeal in several ways, comprising several elements. It is convenient to deal with the elements separately.
Disadvantage and errors in the hearing
Ms Zheng contends that coming from a non-English speaking background, being self-represented, and being nervous at the hearing caused her disadvantage which was not taken into account by the Deputy President; further, she was not able to effectively cross-examine Poten’s witnesses. As to Poten’s evidence and its cross-examination of her, Ms Zheng contended that limited material was put forward about her performance and conduct prior to the hearing, but that in the course of the hearing new allegations were put to her about which she says she was nervous and her memory was cloudy since the matters were more than two years old. Ms Zheng also argues there were errors in the transcript of the hearing, the Deputy President failed to take account of the fact that she came from a background in which open communications were valued, and that, being a Chinese woman, she was culturally hesitant to give firm “yes” or “no” answers, which should have been evident to the presiding member.
We do not consider that Ms Zheng has raised any arguable case that she was denied procedural fairness. Having perused the transcript of the hearing below, read Ms Zheng’s written appeal submissions and heard her oral submissions, it is clear to us that Ms Zheng is sufficiently proficient in English. There is no basis disclosed for the proposition that Ms Zhang’s repeated failure to answer questions directly was due to cultural reasons. It is sufficient in this respect to refer to paragraphs [165]-[166] of the Deputy President’s decision, in which she gave examples from the transcript where Ms Zheng “provid[ed] answers that were at times prolix, not responsive to the question asked and appeared to be focussed on an avoidance of being tripped up rather than on simply telling the truth”. The examples disclose that Ms Zheng was perfectly capable of giving “yes” and “no” answers when she wanted to, but avoided doing so on issues of difficulty to her. Those examples also demonstrate that the Deputy President requested that Ms Zheng give answers that were responsive to the questions being asked of her. As for the contention that “new allegations” were put to her, no material example of a matter being raised during the hearing about which she was not previously on notice was identified. That Ms Zheng may have been nervous and not fully remembered certain events due to the passage of time is understandable, but is not demonstrative of any denial of procedural fairness.
The transcript errors Ms Zheng refers to were identified in her written closing submissions below dated 7 March 2022. Ms Zheng identified errors in two paragraphs only (PN 735 and PN 833). Ms Zheng returned to the subject on 18 May 2022, after the Deputy President’s decision had been issued. On 24 May 2022, Epiq, the Commission’s transcription provider, issued an amended transcript making minor changes to those two paragraphs. Neither the paragraphs nor any part of their content was referred to in the decision. Ms Zheng did not assert otherwise in these proceedings, nor did she explain the relevance of this matter to the outcome.
There is no arguable basis to conclude that Ms Zheng was at any unfair disadvantage during the hearing before the Deputy President, and so we do not consider that this element of Ms Zheng’s third ground of appeal could reasonably lead to a finding, were permission to appeal to be granted, that the Deputy President erred in finding there was a valid reason for Ms Zheng’s termination of employment.
Adverse credit findings
Ms Zheng contends that the Deputy President’s adverse findings of credit were made in error because the Deputy President did not take into account her non-English speaking background, that she was self-represented, that some of the matters on which she was cross-examined had not previously been raised as complaints against her or that the passage of time meant her recollection was cloudy, and because the Deputy President’s criticisms failed to take into account cultural reasons for how she may have answered.
We have already dealt with most of the matters above. It is sufficient to add that it is well established that a member hearing a matter at first instance is usually in the best position to undertake the evaluation of witnesses’ credibility and that there is a “high bar” for an appellant seeking to overturn credit findings.[19] Such findings must stand “unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”.[20] Other than a repeated submission that Deputy President erred in her findings about the credibility of witnesses, including Ms Zheng, there are no submissions of substance before us that would allow findings that the determinations of credit were in error.
We do not accept that the Deputy President’s findings about the reliability of witness evidence were not available to her or that she made them in a manner inconsistent with the facts before her. Instead, we consider the Deputy President made findings that were open on the evidence and appropriately balanced the relevant factors. Accordingly, this element of the third ground of appeal does not represent an arguable case of appealable error.
Findings not warranted on the evidence
Ms Zheng puts forward in her submissions that the Deputy President’s performance and conduct criticisms were unfounded, given that she used her professional experience to conduct her work whereas Mr Pulsford was not a chemical engineer, and that he gave her a “meets expectations” performance evaluation in February 2020.
The findings made by the Deputy President as stepping stones toward her principal valid reason finding about which Ms Zheng complains are, to a significant degree, a product of her findings about witness credibility. Having found that she preferred Mr Pulsford’s evidence on certain critical matters, the Deputy President accepted that he had properly instructed Ms Zheng about numerous matters and that Ms Zheng had been unwilling to accept or act on those instructions. Among other matters, Ms Zheng submits the Deputy President should not have found that she refused to take the lead on an LNG project in Thailand, that Poten “understandably” relied on her “disruptive and negative behaviour” to form part of its reason for dismissing her, that Ms Zheng had made reference to a colleague that Mr Pulsford was “a prick” and that her evidence about a meeting in April 2020 was disingenuous. Ms Zheng’s submissions to us on these matters disclose only that she disagrees with the findings made by the Deputy President, not that such findings were contrary to the evidence. We are not satisfied that any of these matters have sufficient substance to ground the grant of permission to appeal.
Findings about Mr Pulsford’s directions
Ms Zheng argues that a finding made by the Deputy President that it “was uncontroversial in my view that the directions provided by Mr Pulsford were lawful and reasonable and were apt to be followed”[21] amounted to a finding “that all directions given by a manager (e.g. Mr Pulsford in my case) were always lawful and reasonable”.
With this submission, Ms Zheng cherry-picks an important but somewhat confined finding of the Deputy President and seeks to extend it to a finding of general principle. This approach is simply not available on a careful reading of the decision as a whole, or indeed the paragraph within which the finding appears:
“[170] It appeared that Ms Zheng deliberately couched her refusal or resistance to comply with lawful and reasonable instructions as a mere expression of opinion, or an expression of what she really thought, or being argumentative in a manner that was reasonable and not unprofessional. In this respect I consider that Ms Zheng’s evidence was deliberately contrived with a view to avoid sanction or a finding that went against her. For example, Ms Zheng drew artificial lines between what constitutes open opposition to, and arguing with, a manager. It was uncontroversial in my view that the directions provided by Mr Pulsford were lawful and reasonable and were apt to be followed.”
The paragraph appears in a lengthy section of the decision dealing with Poten’s claims concerning Ms Zheng’s underperformance and particularly her unwillingness to follow the directions of Mr Pulsford, a number of which are set out at paragraph [161]. The reference in paragraph [170] to “the directions provided by Mr Pulsford” being lawful and reasonable must be seen not as a finding that “all directions given by a manager… were always lawful and reasonable”, but rather plainly referable to the specific directions referenced in the Deputy President’s decision. That Ms Zheng disagreed with these particular directions did not render them other than lawful and reasonable. This element of Ms Zheng’s third ground of appeal has no foundation.
For the above reasons, we do not consider that ground 3 of Ms Zheng’s appeal is reasonably arguable.
Ground 4 – Predetermination/procedural fairness/bullying/restructuring
Ms Zheng’s fourth ground of appeal deals with her submission that there were errors in various respects in the decision. This ground of appeal is of a scattergun nature and raises no arguable case of appealable error.
Pertinent to the subject of whether she had been given an opportunity to respond to the reason held by Poten for her dismissal, Ms Zheng submits the Deputy President erred in finding that her dismissal was not predetermined. Ms Zheng also contests whether she had been notified of the reason for termination and given an opportunity to respond and maintains she had not been afforded procedural fairness in the process leading to her dismissal. The Deputy President’s findings on those matters, adverse to Ms Zheng, are said to be errors. Further, Ms Zheng contends that the Deputy President had not provided reasons for her rejection of Ms Zheng’s claims that her dismissal was either part of being bullied by Ms Pulsford or flowed from a company restructure. Ms Zheng also argues that the Deputy President’s finding that the criterion in s 387(e) was inapplicable because she was dismissed for conduct matters was in error.
It is evident from her decision that the Deputy President was conscious of the need for a person to understand their employer’s complaints and to respond to those matters before they are dismissed. She noted that an employee must be made aware of the particular matters that put their job at risk and be given an adequate opportunity of defence, but that doing so does not require any particular formality, with the requirement to be applied in a practical commonsense way. The Deputy President further, and uncontroversially, relied[22] upon the dictum of Wilcox CJ in Gibson v Bosmac Pty Ltd that “[w]here the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section”.[23]
The evidence before the Deputy President incontrovertibly demonstrates that Poten held concerns about Ms Zheng’s suitability for ongoing employment over an extended period, and that it warned her about this on a number of occasions. An email and a discussion with Ms Zheng on 30 April 2020 were, as the Deputy President found, “a clear warning to Ms Zheng that her conduct and performance were not as required”.[24] In May 2020 Poten broached with Ms Zheng the subject of her leaving its employment on a “without prejudice” basis. It could not reasonably be contended that Ms Zheng did not appreciate from these and other events that Poten had concerns about her conduct or performance and that a failure to pay attention to those concerns could lead to her dismissal. Ms Zheng had the opportunity to contest those concerns and did so most vigorously, including by making complaints about Mr Pulsford. Ms Zheng’s contentions of error in respect of this are without merit.
As earlier stated, the Deputy President found that, insofar as Ms Zheng “refused to follow direction, resisted direction, was disrespectful, insubordinate, and displayed negative behaviours”, this was conduct-related and did not fall under the umbrella of performance for the purpose of s 387(e).[25] Ms Zheng contends that the Deputy President erred because, if there was any issue concerning her conduct, it did not meet the definition of “serious misconduct” in reg 1.07 of the Fair Work Regulations 2009, and thus s 387(e) should have applied. This argument is in two parts, neither of which is sustainable. First, s 387(a) is relevantly concerned with whether there is a valid conduct-related reason for dismissal; the existence of “serious misconduct” is not the statutory criterion and thus the definition of that expression in reg 1.07 is not applicable. Second, although on one view the issues which Poten had with Ms Zheng could be characterised as concerning her work performance as well as conduct (and Poten’s case below certainly agitated both characterisations), consideration of s 387(e) would not have aided Ms Zheng’s case. This is because, as discussed above, Ms Zheng had clearly been warned about what Poten considered to be her unsatisfactory performance, and thus any finding made pursuant to s 387(e) would not have weighed in favour of the conclusion that her dismissal was harsh, unjust or unreasonable.
We are also not persuaded that Ms Zheng has advanced any arguable case of error in respect of the Deputy President’s finding that her dismissal was not predetermined. Ms Zheng’s submissions regarding predetermination rest entirely on the rejection of the submissions she made in the hearing below and do not engage with or demonstrate error in the findings made by the Deputy President. The decision deals with Ms Zheng’s arguments by noting first that on 25 May 2020 there was a “without prejudice” meeting of Ms Zheng, Mr Pulsford, and Mr Lynch, an HR Advisor from Poten’s parent company. Ms Zheng was informed at the start of the meeting that Poten was considering formal disciplinary action. The Deputy President found that the evidence did not lean toward a finding that Poten had predetermined to dismiss Ms Zheng. We note two things in relation to this issue. First, there were numerous other meetings and interactions between the parties from 25 May 2020 to Ms Zheng’s eventual dismissal on 18 September 2020, and it seems unlikely that a predetermined outcome of dismissal would not be acted on for three-and-a-half months. Second, Ms Zheng’s submission is made in the context of the requirement an employee should be given an opportunity before being dismissed to respond in such a manner as to possibly dissuade their employer from dismissing them. There is no doubt, on the evidence and the findings made by the Deputy President, that Ms Zheng had that opportunity and took ample advantage of it.
Ms Zheng also submits as part of this appeal ground that the Deputy President erroneously concluded that Mr Pulsford was not bullying her and, separately, that her dismissal did not actually flow from a restructure of Poten’s business. However, Ms Zheng did not elaborate on these matters in her submissions. She contends further that the Deputy President’s decision did not set out the reasons for failing to accept Ms Zheng’s case in these regards. However, it is plain that the Deputy President concluded, on the basis of detailed reasoning, that Poten dismissed Ms Zheng for valid conduct-related reasons – a conclusion which necessarily excludes Ms Zheng’s alternative postulation of the reasons for her dismissal. Further, we note that, in paragraph [222] of the decision, the Deputy President gave express consideration to Ms Zheng’s contentions concerning the real reasons for her dismissal and found that “[w]hilst Ms Zheng may hold those perceptions and consider them grounded in truth – they are removed from the evidence adduced and are not shown to be veridical”. We were not taken to anything in the evidence which suggests error in this conclusion.
Other public interest matters
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. We do not accept that the consideration of Ms Zheng’s relationship with Mr Pulsford raises any broader issue about the “line” between professional workplace disagreement and insubordination; this was a case which turned on its specific facts, from which no general propositions are capable of extrapolation.
As we have found that Ms Zheng’s specific contentions of appealable error are not reasonably arguable, there is no basis to conclude that the decision under appeal manifests any injustice or that the conclusions it contains are counter-intuitive. Ms Zheng’s contentions concerning perceptions about the administration of the Commission amongst the “community of all the Asian[s] working in the Oil & Gas industry and within the community of all the Chinese working as professional engineers in Perth” are asserted without any factual foundation, are entirely self-serving, and inappropriately seek to give this matter a racial dimension which it simply does not have.
For the reasons we have given, 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.
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:
L Zheng, the appellant, in person.
K Brotherson, counsel, for the respondent.
Hearing details:
2022.
Sydney, Adelaide and Melbourne by video link:
4 July.
[1] [2022] FWC 950
[2] [2021] FWC 1023
[3] [2021] FWCFB 3478
[4] [2022] FWC 950
[5] Ibid at [164]-[165]
[6] Ibid at [167]
[7] Ibid at [175]-[176]
[8] See, e.g. ibid at [170], [180]-[181], [187] and [189]
[9] Ibid at [197]
[10] Ibid
[11] Ibid at [198]
[12] Ibid at [219]-[221]
[13] 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)
[14] 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]
[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[16] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[17] 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]
[18] Relying upon Oratis v Melbourne Business School[2014] FWCFB 3869 at [8]
[19] Short v Ambulance Victoria [2015] FCAFC 55 at [98]-[99]
[20] Devries v Australian National Railways Commission [1993] HCA 78, 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; see also Fox v Percy [2003] HCA 22, 214 CLR 118 at [26]-[31] per Gleeson CJ, Gummow and Kirby JJ
[21] [2022] FWC 950 at [170]
[22] Ibid at [200].
[23] [1995] IRCA 222, 60 IR 1 at 7
[24] [2022] FWC 950 at [161]
[25] Ibid at [213]
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