Lucas McAuley v Commissioner for Public Employment in the Northern Territory
[2018] FWCFB 2639
•24 MAY 2018
| [2018] FWCFB 2639 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Lucas McAuley
v
Commissioner for Public Employment in the Northern Territory
(C2018/761)
VICE PRESIDENT CATANZARITI | DARWIN, 24 MAY 2018 |
Appeal against decision [[2018] FWC 330] of Commissioner Wilson at Melbourne on 24 January 2018 in matter number U2017/8664.
[1] This is an appeal, for which permission is required, by Mr Lucas McAuley (Appellant) against a decision 1 (Decision) and order2 of Commissioner Wilson in which the Commissioner found that the Appellant was not unfairly dismissed from his employment with the Commissioner for Public Employment in the Northern Territory (Respondent).
[2] At the commencement of these proceedings on 4 April 2018, Mr Piper solicitor for the Appellant, and Mr McDougall counsel for the Respondent sought permission to appear. Having regard to s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act), we granted permission to appear for both parties.
Decision under appeal
[3] The Appellant was employed as an Inspector with the Northern Territory Government (Department of Primary Industry and Resources) (DPIR). In 2016 he was employed as a member of the Animal Welfare Inspectorate of the Animal Welfare Branch of the DPIR. The Inspectorate was responsible, amongst other things, for the welfare of crocodiles.
[4] On 21 August 2016 the Appellant received information in relation to three saltwater crocodiles that appeared to have been dumped at a school in an emaciated condition. The circumstances of the dumping required that the matter be subject to an animal welfare investigation.
[5] The Appellant and Ms Sherie Hunt, another animal welfare inspector, were tasked with carrying out the investigation. Mr McAuley concluded that it was likely that the source of the crocodiles was the Darwin Crocodile Farm. This “was not universally supported. An officer of the Northern Territory’s Parks and Wildlife agency cautioned that his view was that the markings on one of the animals indicated it came from Crocodylus Park.” 3
[6] The Appellant and others considered that a search warrant of the Darwin Crocodile Farm was warranted. This was initially supported by his managers “provided that legal advice was sought on the subject and that an investigation plan was prepared and witness statements obtained, together with advice from the police about the information they had obtained, including from any records of interview they may have conducted.” 4
[7] On 2 September 2016 the Appellant and Ms Hunt attended the law firm Murphy and Associates where they sought from Mr Ray Murphy and his associate Mr Jon Bortoli the legal advice requested by the DPIR.
[8] The Appellant and Ms Hunt said that they raised with Mr Murphy the possibility that the crocodiles came from “a source other than the Darwin Crocodile Farm” whilst Mr Murphy and Mr Bortoli said this was never raised with them and that “information about possible alternative explanations would have raised alarm bells.” 5 The Appellant and Ms Hunt said they offered to leave a briefing folder with the lawyers. Mr Murphy and Mr Bortoli agreed such an offer was made but said they only required certain documents.
[9] The subsequent legal advice of 5 September 2016 supported the issuing of a warrant. 6
[10] On the same day the Appellant was advised that Dr Michelle Rodan, the Director, Biosecurity, had decided she did not want a warrant executed but wanted to do a “friendly visit” 7 with a view to educating the Darwin Crocodile Farm. The Appellant and Ms Hunt viewed the decision to not seek the search warrant as a possible obstruction or hindrance of an Inspector.
[11] The Appellant’s concerns led him to contact the Commissioner for Public Interest Disclosures (PID) on or around the same day. Whilst the precise terms of the contact were not provided to the Fair Work Commission (Commission) it was accepted that Mr McAuley had made allegations that “officers within the DPIR had breached their obligations with respect to the crocodile investigation.” 8
[12] On 6 September 2016 control of the investigation was taken from the Applicant and given to Dr Rodan.
[13] On 9 September 2016 the Appellant sent an email to DPIR’s Chief Executive Officer (CEO) (Mr Trier) and Deputy CEO (Mr Curnow) in which he made allegations of “serious concerns about unethical behaviour that goes against this department’s values” with respect to Dr Rodan, Mr Ron Hutcheson (Acting Manager, Animal Welfare) and Mr Paul Mitchener (Manager, Animal Welfare Branch). The Appellant referred to the crocodile investigation and expressed the view that he “felt he was being ethically compromised”. He also said that Mr Hutcheson and Dr Rodan had colluded “to discredit him and take formal disciplinary action against him.” 9 He also provided a USB storage device which contained recordings of a number of conversations and meetings made by the Appellant.
[14] On 13 September 2016 Dr Rodan had an exchange with Mr Murphy with respect to the legal advice given. On the basis of additional information provided by Dr Rodan, Mr Murphy said his firm’s advice “would have been that there were insufficient grounds to apply for a search warrant.” 10 He indicated that he had not been privy to some of the information now provided.
[15] After reviewing the Appellant’s complaints, Mr Curnow advised the Appellant that the DPIR had found no evidence to support the allegations of the Appellant and that the Chief Executive of the Animal Welfare Inspectorate (Mr Trier, who is also the CEO of DPIR) concurred with the recommendations of Dr Rodan. Mr Curnow indicated that in the course of the investigation some specified procedural and behavioural concerns with respect to the Appellant had come to light and that a more detailed investigation of these matters would be undertaken. 11 The matters specified were formalised in correspondence to the Appellant on 7 October 2016.
“[37] ...The correspondence was a formal allegation of “breach of discipline” pursuant to s.49A(1) of the Public Sector Employment and Management Act (NT) (the PSEM Act). The correspondence from Mr Trier particularised 5 alleged breaches of the PSEM Act by Mr McAuley, covering allegations that he withheld information from Murphy and Associates; that he recorded conversations with other public sector officers without their knowledge and consent; and that in relation to Mr Hutcheson, the director, Animal Welfare Branch, that he harassed or coerced him, misled him and failed to follow a lawful order or direction given by Mr Hutcheson. The correspondence invited Mr McAuley’s submissions on the matters set out within the letter.”
[16] On 15 November 2016 the Appellant wrote to Mr Trier raising matters of a health and safety nature in which he detailed approaches made to him by employees raising concerns of misconduct and bullying. On the same day the Appellant made further contact with PID alleging staff of DPIR had been involved in the unlawful seizure and sale of two foals.
[17] An investigation into the allegations made by the Appellant was undertaken. The terms of reference for the investigation were apparently broadened to deal with the Appellant’s correspondence to Mr Trier on 15 November 2016.
[18] The report of the investigator was provided to the DPIR on 6 April 2017 and to the Appellant on 3 May 2017. The Appellant was asked for his response to the findings which he provided in detail to Mr Trier on 31 May 2017.
[19] Following a consideration of the material, Mr Trier sent a findings letter to the Appellant on 11 July 2017 which set out his disposition of the allegations. These were summarised in the decision as follows:
• Alleged Breach 1 – agreement by Mr Trier that the investigation established that Mr McAuley withheld information from Murphy and Associates, with that breach meaning that he had not properly carried out his duties; not demonstrated the highest ethical standards or exercised the best possible technical or professional judgement; and breached Mr Murphy’s and DPIR’s trust and confidence;
• Alleged Breach 2 – agreement by Mr Trier that the investigation established that Mr McAuley had made voice recordings on five occasions with those recordings being in breach of the Northern Territory Public Sector Policy, with him expressing the view that this “breach of discipline is extremely serious”;
• Alleged Breach 3 – agreement by Mr Trier that the investigation established that the first conversation with Mr Hutcheson on 9 September 2016 “was not only disrespectful but also aggressive and intimidating”;
• Alleged Breach 4 – also pertaining to the first conversation with Mr Hutcheson on 9 September 2016, agreement by Mr Trier that the investigation established that Mr McAuley gave false and misleading responses to Mr Hutcheson;
• Alleged Breach 5 – Mr Trier advised this allegation was withdrawn, which also pertains to the first conversation with Mr Hutcheson on 9 September 2016, going to the question of whether or not Mr McAuley complied with a direction given to him by Mr Hutcheson to leave;
• Alleged Breach 6 – agreement by Mr Trier that the investigation established that Mr McAuley’s email to him on 15 November 2016 contained false or misleading information;
• Alleged Breach 7 – pertaining to the second conversation between Mr McAuley and Mr Hutcheson on 9 September 2016, agreement by Mr Trier with the investigation finding that Mr McAuley’s behaviour was intended to harass or coerce Mr Hutcheson;
• Alleged Breach 8 – Mr Trier agreed that an allegation Mr McAuley had failed to provide the information asked for by Mr Mitchener in early September 2016 or to attend meetings as requested was not substantiated and should be withdrawn. 12
[20] Following a further submission from the Appellant, Mr Trier advised the Appellant that the disciplinary action foreshadowed was reasonable and appropriate and that the Appellant’s employment would be terminated.
[21] The Appellant was advised of his internal appeal rights. His employment was terminated on 26 July 2017.
[22] The Commissioner then proceeded to consider if the dismissal was harsh, unjust or unreasonable. In so doing he considered each of the grounds for dismissal as articulated in the letter of Mr Trier of 11 July 2017 and made findings on the basis of the evidence before the Commission.
[23] With respect to Alleged Breach 1, the Commissioner found that the Appellant:
“[69] ...did not provide the brief with Murphy and Associates and that he and Ms Hunt merely spoke about what it contained without volunteering that there was information linking one or more of the crocodiles to Crocodylus Park. I accept that they had a folder with them and that the folder likely contained the material to which each referred about the source of one of the crocodiles potentially being Crocodylus Park; however the evidence does not lead to the finding that it was “provided” to the lawyers for them to view, consider and keep. The lawyers may have neglected to consider that it contained important information and properly review its contents, however, there was no insistence by Mr McAuley that they have the folder, or endeavour by him to say they needed to consider what Mr Nichols had told him about the source of the crocodiles. More likely than not, it was Mr McAuley’s intention that the folder not be provided to the lawyers unless they happened to ask for it. Such a situation is, indeed, the withholding of important and pertinent information, which prevented Murphy and Associates from providing accurate legal advice.”
[24] The Commissioner was also satisfied that, on the balance of probabilities, the misconduct occurred.
[25] After considering the provisions of the Surveillance Devices Act 2007 (NT)and the Northern Territory Government Policy (NT Government Policy), the Commissioner observed that:
“[93] ...certainly a finding is available that Mr McAuley had an apprehension or belief that his management were doing things to him against his employment interests or in contravention of their obligations. Such apprehension or belief though is far from a finding that he was entitled to form a view on any objective basis that such things were against his lawful interests. The interactions his managers had with him and the directions they gave him are, objectively considered, balanced, fair and in accordance with what one might regard as proper management of a regulatory officer, such as Mr McAuley.”
[26] He concluded, however, that:
“[95] Objectively speaking, there is nothing before the Commission which would allow a finding that the recordings made by Mr McAuley were properly for the purposes of protecting his lawful interests.”
[27] After rejecting the proposition that departmental officials had permitted the making of the recordings by the Appellant, the Commissioner concluded that the alleged misconduct in Alleged Breach 2 did occur.
[28] With respect to the interactions of the Appellant with Mr Hutchinson on 9 September 2016, the Commissioner agreed that the Appellant’s behaviour in the conversation was “aggressive and intended to intimidate Mr Hutcheson” 13 and that Alleged Breach 3 was therefore made out.
[29] The Commissioner found that the Appellant, by “not being explicit about the fact that he was recording the conversation” 14 with Mr Hutcheson, did provide false and misleading information to Mr Hutcheson. For this reason the Commissioner found the conduct in Alleged Breach 4 did occur.
[30] With respect to the email about health and safety concerns provided by the Appellant to Mr Trier, the Commissioner found that “there was, on the balance of probabilities, likely no misconduct to be established on the part of [the Appellant] when he put forward that as the chair of the committee he is often approached by staff to discuss workplace issues.” 15 However, the Commissioner did find that the evidence “establishes that [the Appellant] was likely being misleading of Mr Trier when he sent the communication” and that the communication “was plainly designed to give rise to the impression that each of the people concerned had requested [the Appellant], in his capacity as chair of the WHS committee, to formally raise with the DPIR the issues referred to” but that “while the things he referred to may well have been the subject of gossip, discussion, or even presumed widespread knowledge, there is no evidence that any of the people had authorised [the Appellant] to raise the matter.”16 Accordingly the Commissioner found that Alleged Breach 6 was made out.17
[31] Alleged Breach 7 related to the Appellant’s conduct during a staff meeting on 9 September 2016. The Commissioner found that “listening to the audio file clearly leads to the proposition that [Mr Appellant] wanted Mr Hutcheson to come out to the team and respond to his bidding”, that the Appellant “likely wanted to embarrass Mr Hutcheson” and that the Appellant’s “continued level of raised voice towards Mr Hutcheson” amounted to “classic bullying behaviour”. On this basis he found that the Appellant harassed Mr Hutcheson in the course of this conversation. 18
[32] Based on his findings as to the Appellant’s conduct, the Commissioner found that the DPIR had a valid reason to dismiss the Appellant based on his conduct and the effect of that on the safety and welfare of other employees.
[33] The Commissioner then considered the further criteria under s.387 of the FW Act. Under s.387(h) of the FW Act he considered the submissions of the Appellant that he was being “hindered or obstructed as an inspector and that some or all of the actions taken by the DPIR to investigate his conduct amounted to reprisal conduct for having made a complaint to the Public Interest Disclosures Commission.” 19 The Commissioner rejected the veracity of that argument.
[34] In the absence of any other factors that would render the dismissal unfair, the Commissioner found that the Appellant had not been unfairly dismissed.
Permission to appeal
[35] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 20 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the FW Act states:
“(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”
[36] This appeal is one to which s.400 of the FW Act applies. Section 400 provides as follows:
“400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[37] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 21 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment22. In GlaxoSmithKline Australia Pty Ltd v Makin23 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“[27] ...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 24
[38] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 25 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.26
The appeal
[39] The grounds of appeal are best summarised in the Appellant’s submissions which can be summarised as follows:
1. The Commissioner failed to have regard to the full context of the recordings [of the Appellant]. The context of the recordings being:
a. The Appellant frequently used recording devices in the course of his duties with the knowledge of his superiors, and had also sought permission from them to do so.
b. The Appellant’s primary objective was to investigate the discovery of emaciated crocodiles found near the Darwin Crocodile Farm, in respect of which farm he had previous information there was an area of the property (a) in which proper care was not given, and (b) from which crocodiles were known to frequently escape.
c. The Appellant’s superiors had a dual role (a) to actively support and develop positive relationships with commercial enterprises such as the Darwin Crocodile Farm in their role as officers of the Department of Primary Industries and Resources, and (b) conversely, to investigate potential offences by such enterprises as delegates of the Director of Animal Welfare.
d. The Appellant formed a view that this potential conflict of interest may have contributed to his superiors discontinuing the investigation being undertaken by him, by intervening in the issuing of a warrant to inspect the conditions of crocodiles held in the relevant area of the Darwin Crocodile Farm.
e. Suspecting his superiors were declining to perform their functions under the Animal Welfare Act (NT) (AW Act), the Appellant made recordings: (a) to ensure he was not seen to be complicit in such decisions, and (b) to report the matter of the potential conflict of interest to the Office of the Commissioner for Public Interest Disclosures (an office established under the Northern Territory whistleblowers legislation).
2. The Commissioner had insufficient regard to the factual and legislative context within which the recordings were made including the Surveillance Devices Act 2007 (NT), the AW Act and the Public Sector Employment and Management Act (NT) (PSEM Act)
3. The Commissioner erred in that he appeared to equate the recordings with a breakdown in the employment relationship and that causing such a breakdown was automatic grounds for dismissal.
4. The Commissioner erred in not referring to any specific breaches of the PSEM Act in condemning the recordings in circumstances where the [DPIR] relied on the recordings as a breach of the PSEM Act.
[40] The Appellant submitted that it was in the public interest to grant permission to appeal because:
a. Both the Decision of the Commissioner, and the reporting in the media of the Decision, would cause an average person to perceive that by its very nature, the act of recording a conversation in the workplace will automatically lead to termination of employment. The Appellant argues this should not be the case either in his particular case, or generally, and there is a public interest in correcting this.
b. Alternately, the public interest exists because the Decision manifests an injustice, or resulted in a counterintuitive outcome (refer GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343); or is attended with sufficient doubt to warrant its reconsideration, or it is apparent that a substantial injustice may result if leave is refused (refer CFMEU v AIRC 84 IR 314 at 333).
[41] Any other grounds of appeal alluded to in the notice of appeal were not further dealt with in the written submissions of the Appellant or at the hearing of permission to appeal.
Consideration
[42] Alleged Breach 2 deals specifically with the conduct of covert recordings by the Appellant. At paragraphs [76] – [100] the Commissioner sets out in detail the basis on which the Appellant said he made the recordings, his reliance on both the Surveillance Devices Act and his role under the AW Act. The Commissioner considered the reasons given by the Appellant for making the recordings (protecting his interests and protecting himself from unlawful instructions) and the provisions of the Surveillance Devices Act and the NT Government policy on Recording Internal Government Meetings.
[43] The Commissioner properly considered whether the recordings amounted to misconduct and recognised that this required a consideration of “several layers of obligations”. 27
[44] The Commissioner found that:
• There was no evidence that directions given to the Appellant about the progress of the crocodile investigation were not contrary to proper processes. 28
• The interactions the Appellant’s managers had with him and directions given to him were balanced, fair and in accordance with proper management of a regulatory officer. 29
• There was nothing before the Commission that would allow a finding that the Appellant made the recordings for the purpose of protecting his lawful interest. 30
[45] The Commissioner also considered and rejected the proposition that departmental officers “had permitted the making of secret recordings by [the Appellant] or others”. 31
[46] In reaching his conclusion that conduct specified in the allegation did, in fact, occur, the Commissioner took into account the views of the Appellant, his submissions as to past conduct with respect to recording conversations and his apparent reasons for recording as reflected in his findings. He appropriately balanced these considerations in reaching his conclusion. We cannot discern any apparent error in his reasoning.
[47] We do not consider that the Commissioner’s reference to the decision in Lever v Australian Nuclear Science and Technology Organisation 32 (Lever) was inappropriate. The decision in Lever was not the reason for the decision of the Commissioner. Rather, it was a relevant matter, as were other decisions referenced by the Commissioner with respect to covert recordings, in considering how other members of the Commission had treated such conduct. There can be no error in being aware of other decisions of members of the Commission in similar circumstances.
[48] That the Commissioner did not consider if the recording breached any specific provision of the PSEM Act does not demonstrate any error, let alone substantial error, of fact in the decision he reached. Rather, the Commissioner determined, as he was required, if the conduct complained of occurred on the basis of the evidence before him.
[49] Contrary to the Appellant’s contention, we are not satisfied that the Commissioner reached any conclusion that making of a recording or reporting a Public Interest Disclosure necessarily alone constituted misconduct and warranted termination of employment.
[50] The making of the recording was one of a number of allegations of misconduct against the Appellant. The Commissioner properly considered all of the conduct he found to have occurred in determining that there was a valid reason for dismissal.
[51] To the extent that any other findings were made in relation to the recordings of conversations, we are satisfied that those findings arose from the content of the recordings and not from the fact that the recording occurred. We find no error in any of those findings by the Commissioner.
[52] Further, to the extent that the Commissioner found that the Appellant withheld information from Murphy and Associates, the Commissioner found Mr Ray Murphy and Mr Jon Bortoli to be witnesses of credit and their evidence “capable of acceptance”. Having made that finding, he preferred their evidence as to what had occurred in meetings with the Appellant. We see no error in doing so. Findings of fact at first instance, based on the credibility of a witness, will only be set aside on appeal where incontrovertible facts or uncontested testimony show that the decision-maker’s conclusions are erroneous, or where the conclusions drawn are clearly improbable or contrary to compelling inferences. 33 We do not consider that such error has been demonstrated by the Appellant. A desire by the Appellant for the Commissioner to have reached a different conclusion is not grounds to grant permission to appeal.
[53] We are satisfied that the Commissioner properly took into account if the actions taken against the Appellant were reprisals for the disclosures he made to the Public Interest Disclosures Commission. 34
[54] No other grounds of appeal were advanced that indicated any error on the part of the Commissioner. The findings made by the Commissioner were open to him on the basis of evidence before him.
[55] We are not convinced that an arguable case of appealable error has been disclosed by the Appellant. Further, we are not satisfied that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[56] The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The correct legal principles were applied and no significant error of fact has been disclosed.
Conclusion
[57] For the reasons set out above, we are not satisfied, for the purposes of s.400(1) of the FW Act that it would be in the public interest to grant permission to appeal.
[58] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
B. Piper, solicitor,for the Appellant.
J. McDougall, counsel, for the Respondent.
Hearing details:
2018.
Melbourne via video link to Darwin:
April 4.
Printed by authority of the Commonwealth Government Printer
<PR606992>
1 [2018] FWC 330.
2 PR599794.
3 [2018] FWC 330 at [15].
4 Ibid at [14].
5 Ibid at [18].
6 Ibid at [20].
7 Ibid at 21.
8 Ibid at [26].
9 Ibid at [29].
10 Ibid at [33].
11 Ibid at [35].
12 Ibid at [48].
13 Ibid at [106].
14 Ibid at [110].
15 Ibid at [115].
16 Ibid at [116].
17 Note that Alleged Breaches 5 and 8 were not pursued by DPIR.
18 [2018] FWC 330 at [123] – [124].
19 Ibid at [134].
20 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
21 (2011) 192 FCR 78 at [43].
22 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
23 [2010] 197 IR 266.
24 [2010] FWAFB 5343, 197 IR 266 at [27].
25 Wan v AIRC (2001) 116 FCR 481 at [30].
26 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
27 [2018] FWC 330 at [83].
28 Ibid at [89].
29 Ibid [93].
30 Ibid [95].
31 Ibid [99].
32 [2009] AIRC 784 at [103].
33 Short v Ambulance Victoria [2015] FCAFC 55.
34 [2018] FWC 330 at [94].
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