Miss Kaitlan Earnshaw v Larjane pty ltd T/A Next Step Childcare Tahmoor

[2021] FWC 110

[2021] FWC 110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Kaitlan Earnshaw
v
Larjane pty ltd T/A Next Step Childcare Tahmoor
(U2020/12432)

COMMISSIONER RIORDAN SYDNEY, 11 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 16 September 2020, Ms Kaitlan Earnshaw (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) for an Unfair Dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The Application named Larjane Pty Ltd t/a Next Step Childcare Tahmoor (ABN 60167363493) (the Respondent) as the Applicant’s former employer. Mrs Jane Underwood was named as the Respondent’s representative.

[3] On 12 October 2020, the Application was allocated to my Chambers. I programmed the matter for Conference on 21 October 2020 and 26 October 2020 as well as Conference/Hearing on 2 November. The Respondent failed to appear at each of these proceedings. As a result, the Application has been determined on the uncontested evidence provided by the Applicant.

Procedural History

[4] It is important to note the steps taken by the Commission to inform the Respondent of the proceedings.

[5] On 18 September 2020, an employee of the Commission electronically served the Application on the Respondent.

[6] On 30 September 2020, an employee of the Commission called the Respondent. During this call, the Respondent stated they were unaware of the matter. The Commission employee explained that the Application had been served on the Respondent on 18 September 2020 and confirmed the Commission had the correct email address of the Respondent. On 30 September 2020, the Commission resent the Application to the Respondent via email.

[7] The Application was listed for Conciliation before a Staff Conciliator on 6 October 2020. The Conciliation did not take place because the Respondent failed to attend.
[8] On 12 October 2020, the Application was allocated to my Chambers. On 13 October 2020, the matter was listed for Conference before me on 21 October 2020. The Notice of Listing was sent via email to the Respondent.

[9] The Respondent failed to attend the Conference on 21 October 2020. At the time of the Conference, my Chambers called the Respondent at the time of the Conference and spoke to an employee of the Respondent. The Respondent’s employee confirmed with my Chambers that Ms Underwood was the appropriate contact person for the Respondent and further confirmed the email address of the Respondent. The employee of the Respondent indicated that they did not have adequate instructions to participate in the Conference on behalf of the Respondent. On the same day, my Chambers emailed the Respondent asking the Respondent to explain their absence from the Conference, notifying that the matter had been relisted for Conference on 26 October 2020.

[10] On 23 October 2020, my Chambers called the Respondent and spoke to Ms Underwood. My Chambers informed Ms Underwood of the Conference on the 26 October 2020 and again advised that the Application had been provided by email and reconfirmed the Respondent’s email address. My Chambers further put the Respondent on notice that should they fail to attend the next Conference that an adverse order may be made against the Respondent.

[11] On 26 October 2020, the Respondent failed to attend the second Conference. At the time of the Conference, my Chambers called the Respondent again speaking to an employee. This employee further confirmed that Mrs Underwood was the appropriate contact person and stated that she was unavailable. The employee stated that they did not have adequate instructions to participate in the Conference.

[12] On 26 October 2020, My Chambers wrote to the Respondent via email and express post. This correspondence advised the Respondent that the Application has been programmed for Conference/Hearing on 2 November 2020. Further, the correspondence, put the Respondent on notice that should they fail to attend this proceeding, it will proceed in their absence at which point the Commission will determine the matter on the evidence provided by the Applicant.

[13] On 2 November 2020, the Respondent failed to attend the Conference/Hearing. At the time of the proceeding, my Chambers called the Respondent again, notifying them of the proceeding and explained the consequence if they failed to attend. The employee indicated that Mrs Underwood was the appropriate person to participate in the proceeding and that she was unavailable. Further, during this call the employee of the Respondent confirmed that the Commission had the correct postal address for the Respondent.

[14] Rule 42 (c) of the Fair Work Commission Rules 2013 provides that to effect the service of a document on a party the Commission may email a document to the email address specified as the person’s email address. The Commission confirmed the Respondent’s email on or about three occasions as well as sending duplicate correspondence to the Respondent’s postal address. As such, I am confident that the Respondent is aware of the Application and has elected to ignore it. As such, the Commission is forced to determine the matter on the information contained in the Form F2 and the evidence given by the Applicant under oath during the Hearing.

Background

[15] Prior to the Applicant’s termination she was employed by the Respondent as an Educator. As an Educator, the Applicant was responsible for the supervision of a group of children.

[16] On 3 September 2020, the Applicant took the children under her supervision from room 3-4 of the Respondent’s premise to room 1-2 of the Respondent’s premises. Upon arrival in room 1-2, the Applicant handed supervision of the children over to the Educators that were to be supervising the children from that point onward.

[17] Once the children had been placed in the care of the other Educators, the Applicant left room 1-2. The Applicant’s shift had concluded. The Applicant went to the office, signed out and walked to her car. Unbeknownst to the Applicant, a child that was formally in her care had exited room 1-2 behind her. Once outside room 1-2 the child exited a gate that was left open by a parent who was entering the Respondent’s premises.

[18] One of the staff members of the Respondent noticed that the child was outside the gate and retrieved the child. The child was unharmed. While leaving the premise in her car, the Applicant witnesses the staff member retrieve the Child. Believing that the situation was under control the Applicant drove home.

[19] On the morning of 4 September 2020, the Applicant was terminated.

Relevant legislation

[20] The relevant sections of the Act relating to this application are:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Section 396 – Establishing Jurisdiction

[21] Section 396 of the Act outlines several jurisdictional facts that must be addressed before the Commission turns to an assessment of the merits of a matter. I now turn to address each of these in turn.

Section 396(a) whether the application was made within the period required in subsection 394(2)

[22] Section 394(2) of the Act provides:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)

[23] The Applicant’s Form F2 advised that she was dismissed on 4 September 2020. The Application was filed on 16 September 2020. As such, the Application was filed with in the 21 day statutory frame proscribed by section 396(a).

Section 396(b) whether the person was protected from unfair dismissal

[24] As a constitutional corporation, the Respondent is a national system employer pursuant to section 14 of the Act. As an employee of a national system employer, the Applicant is a national system employee, pursuant to section 13 of the Act. It was the Applicant’s unchallenged evidence that she worked regular casual shifts with the Respondent from 10 February 2020 until her termination. I am satisfied that the Applicant has satisfied the minimum employment period. The Applicant’s employment is covered by the Children’s Services Award. I am satisfied that the Applicant is protected from unfair dismissal.

Section 396(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code

[25] There is no evidence before the Commission that the Respondent is a Small Business within the meaning of section 23 of the Act.

Section 396(d) whether the dismissal was a case of genuine redundancy

[26] It is the Applicant’s uncontradicted evidence that she was terminated for alleged misconduct.

Consideration

[27] Section 385 of the Act provides that a person has been unfairly dismissed if the FWC is satisfied that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, or that the dismissal was not a case of genuine redundancy. It is the Applicant’s uncontested evidence that she was dismissed on 4 September 2020 by the owner of the Respondent. Further, it has been established above that there is no evidence to suggest that dismissal was consistent with the Small Business Fair Dismissal Code and dismissal was a case of genuine redundancy. As such, I will consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[28] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[29] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1

Section 387(a): Was there a valid reason for the dismissal?

[30] The meaning of the phrase “valid reasons” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371:

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected [2019] FWC 3332 10 with the employee’s capacity or performance or based on the operational requirements of the employer. …

Section 170DE(1) refers to “a valid reason, or valid reasons”, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason”.

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common sense way to ensure that” the employer and employee are each treated fairly…”

(My emphasis)

[31] It was the Applicant’s uncontested evidence that there was no valid reason for the dismissal related to the Applicant’s conduct because the child that escaped was under the supervision of another Educator. Further, the Applicant stated that it was the practice of the Respondent for Educators to be relinquished of responsibility once they had handed the children that they were supervising over to another Educator.

[32] As no evidence was put to the Commission to contradict the above contentions, I find there was no valid reason for the dismissal. I have taken this into account.

Section 387(b): Was the Applicant notified of the reasons for dismissal?

[33] It was the Applicant’s uncontested evidence that she was informed in person and in writing of her dismissal on 4 September 2020. I have taken this into account.

Section 387(c): Was the Applicant given an opportunity to respond to the allegations?

[34] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 2

[35] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 3 Where 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.4

[36] It was the Applicant’s uncontested evidence that they attempted to respond to the allegations in the disciplinary meeting on 4 September 2020. The Applicant claimed that during this meeting the Respondent would not listen to their response. I have taken this into account.

Section 387(d): Was the Applicant unreasonably refused the presence of a support person at any discussions relating to dismissal?

[37] It was the Applicant’s uncontested evidence that she was not sufficiently notified of the disciplinary meeting in which she was terminated.

[38] However, as noted by the Full Bench of the Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present, though that matter may be relevant and taken into account under s.387(h).”

Section 387(e): Was the Applicant warned about that unsatisfactory performance before the dismissal?

[39] There is no evidence before the Commission of the Applicant receiving any warning with respect to her conduct or performance.

Section 387(f): How much did the size of the employer’s enterprise impacted on the procedures followed in effecting the dismissal?

[40] There is no evidence before the Commission in relation to this criteria.

Section 387(g): How much did the absence of dedicated human resource management specialists or expertise in the enterprise impact the procedures followed in effecting the dismissal?

[41] There is no evidence before the Commission as to whether the Respondent has a human resources team.

Section 387(h): Any other matters that the FWC considers relevant?

[42] There are no further matters the Commission considers relevant.

Conclusion

[43] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied and find that the dismissal of the Applicant was harsh and unjust. There was no evidence before the Commission that the Respondent had a valid reason to terminate the Applicant, nor was the Applicant provided with the necessary level of procedural fairness to object to her termination.

[44] The Applicant did not receive her statutory entitlement to a fair go. I find that the Applicant was unfairly dismissed.

Remedy

[45] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:

Section 390 When the FWC may order remedy for unfair dismissal

(1)  Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a)  the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)  the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3)  The FWC must not order the payment of compensation to the person unless:

(a)  the FWC is satisfied that reinstatement of the person is inappropriate; and

(b)  the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[46] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

I am satisfied that reinstatement of the Applicant is inappropriate; and

I consider an order for payment of compensation is appropriate in all the circumstances of the case.

[47] It was the Applicant’s evidence that she has found alterative employment since her dismissal. As stated by a Full Bench, “[i]n assessing whether reinstatement is an appropriate remedy, it is obviously relevant as to whether the dismissed employee has obtained alternative employment. Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return.” 5

[48] I am satisfied and find that reinstatement of the Applicant is inappropriate. In the circumstances of this case I find that an order for payment of compensation is appropriate.

[49] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Applicant’s service;

(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;

(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;

(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[50] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

[51] The Applicant’s length of service was 207 days.

[52] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 6

[53] It was the Applicant’s evidence that the Applicant obtained alternative employment on a comparable rate of pay two weeks after her dismissal.

[54] The Applicant submitted that the Applicant’s employment would have been likely to continue for a further period of at least two weeks and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $1815.64.

[55] I am satisfied and find that the Applicant’s employment would have continued for a further 2 weeks. I find that the payment of 2 weeks’ pay plus superannuation is an appropriate remedy for the Application.

[56] I am satisfied that the amount of compensation that I have determined above takes into account all of the circumstances of the case as required by s.392(2) of the Act.

[57] I am satisfied that the amount of compensation that I have determined is not more than the greater of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal or half of the high income threshold immediately before the dismissal.

[58] In light of the above, I Order that the Respondent pay $1815.64 (less appropriate taxation as required by law) plus superannuation of $172.49 to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

[59] I so Order

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR726087>

 1   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 2   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 3   RMIT v Asher (2010) 194 IR 1, 14-15.

 4   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 5   Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341, [24].

 6   He v Lewin [2004] FCAFC 161, [58].