[2020] FWC 5004

FAIR WORK COMMISSION

DECISION

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

Mr Jimmy Seoud
v
NRA Enterprises Pty Ltd T/A Toy Box Showgirls
(U2020/480)

COMMISSIONER HUNT

BRISBANE, 17 SEPTEMBER 2020

Application for unfair dismissal remedy – jurisdictional objection whether applicant earned more than the high-income threshold – subsequent jurisdictional issue identified that application may have been made outside 21-day time limit – application out of time – no exceptional circumstances present to extend time limit – alternative finding that applicant’s earnings exceeded high-income threshold – application dismissed.

[1] On 13 January 2020, Mr Jimmy Seoud made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging his dismissal from NRA Enterprises Pty Ltd T/A Toy Box Showgirls (the Respondent), now known as the Toy Box Gentleman’s Club, was harsh, unjust or unreasonable.

[2] The Form F2 – Application for unfair dismissal remedy identified the date the dismissal took effect to be 18 December 2019. Mr Seoud stated that he was notified of the dismissal on 27 December 2019 which, if correct, would result in his application having been made within the statutory 21-day time limit specified in s.394(2) of the Act.

[3] On 18 February 2020, the Respondent filed a Form F3 – Employer response to the application, raising a jurisdictional objection to the application that Mr Seoud earned more than the high-income threshold and was therefore ineligible to make an application for unfair dismissal remedy to the Commission. The high-income threshold was $148,700 per annum at the time the application was made.

[4] The Form F3 stated that Mr Seoud was dismissed on 17 December 2019 and he was informed of the dismissal on the same day. If that is correct, the application would have been made six days late. Whilst nominating the effective date of the dismissal and the date Mr Seoud was informed of the dismissal, the Respondent did not raise a jurisdictional objection that the application had been made out of time.

[5] I raised this issue with the parties at the commencement of the jurisdiction hearing and have subsequently heard submissions and evidence from the parties about this issue.

[6] This is my decision determining the above two jurisdictional issues.

Background

[7] Between 12 June 2018 and 17 December 2019, Mr Seoud was a Director of the Respondent. From 5 July 2018 he was also employed by the Respondent as an Operations Manager and Adult Entertainment Controller. The Respondent operates Toy Box Gentleman’s Club (the Club) in Surfers Paradise, where female performers dance and strip.

[8] The Respondent, although a separate corporate entity, is related and administratively managed within the Ultra Group of Companies (Ultra Group), in particular by Ultra Tune Australia Pty Ltd (Ultra Tune). It is noted that Ultra Group includes the Respondent, Ultra Tune, Clarson Properties Pty Ltd (Clarson Properties), Clarson Holdings Pty. Ltd. (Clarson Holdings) and Ultra Thoroughbred Racing Pty Ltd. The common Director of all the Ultra Group companies is Mr Peter Sean Buckley, also being the Executive Director of Ultra Group. Clarson Holdings is the sole shareholder of the Respondent.

[9] On 27 December 2019, the Respondent sent a letter via Hone Legal & Conveyancing to Mr Seoud about his termination, as below:

“Dear Mr. Seoud

Re: Peter Sean Buckley and Ultra Group of Companies

We act for Mr. Peter Sean Buckley – Executive Director of the Ultra Group of Companies (“Group”), and for the Group including Ultra Tune Australia Pty Ltd (“Company”)

We are writing to you to clarify some points regarding your lack of understanding as to the reason(s) your role at the Toybox Gentleman’s Club was ultimately terminated and you were removed from the board of directors on December 17^th 2019 whilst you were holidaying in Bali.

We are instructed that you were informed of, and welcomed, the decision of the board, stating you no longer wished to work at the Toybox and wished to relocate to Melbourne. In order to facilitate this relocation to Melbourne, Mr. Buckley offered you a role at the Company, on a comparable salary with a motor vehicle, working out of the Melbourne offices under the direction of Mr. Tony and Mr. Rod Cedaro on December 19^th 2019 which you subsequently rejected.

Over the last few weeks you have made representations alluding to your belief that you have done nothing wrong to warrant termination despite numerous breaches of your original (Toybox) contract having been clearly elucidated to you. Section 12.5, thereof clearly discusses grounds for summary termination.

For the record these breaches include (but are not limited to) the following:

Summary Termination

12.5: Summary dismissal can occur in circumstances involving serious misconduct including but not limited to the following:

(a) Causes a serious risk to the health and safety of a person or persons

(c) Bullying, sexual harassment and/or discrimination

(d) Occupational violence

(e) Fraud, theft or gross dishonesty

(g) Being intoxicated at work

(h) Use or possession of drugs at the workplace and breach of lawful management instruction

(i) Wilfully failing or neglecting to perform or carry out your responsibilities, functions or duties

(j) Conduct which in the opinion of the Employer injures the reputation or standing of the Employer

The company has found adequate evidence of breaches to each of the above points to warrant your immediate termination in December.

Further, despite your repeated assurances that you would do so (as required under your said employment contract), the company owned Mercedes Benz motor vehicle (formerly with registration MRVEGAS) which until recently was provided to you and in your possession and care has not been returned to the company and instead your action have amounted to theft thereof and it has been reported stolen.

You have had various discussions with representatives of Ultra Tune Australia (eg. Anthony Swords and Peter Sean Buckley) regarding this matter. However, instead of returning the vehicle in question, you have chosen to unlawfully transport the vehicle to Melbourne and you have been advised Mr. Buckley and Mr. Swords that you have delivered the vehicle to [redacted].

[redacted] has contacted Mr. Swords via various methods (eg. Text) and verbal communications and has advised Mr. Swords the car will not be returned and there will be severe consequences for seeking its return.

The Company considers this to be blackmail and extortion of the highest order.

Preliminary investigations indicate [redacted] is a member or otherwise affiliated with the Outlaw Motorcycle Gang [redacted], and the proprietor of [redacted] in Melbourne. Further, you are fully aware [redacted] attempted to blackmail/extort monies from Ultra Tune Australia to sponsor [redacted] some years ago.

This matter has been referred to the Police Task Force dealing with organized crime and Motorcycle gang associations.

Additionally, we are instructed that you have made numerous and repeated threats to company director, Peter Sean Buckley, having carried through on two of those threats in contacting his partner [redacted] and former partner [redacted], attempting to extort $350,000 from Mr. Buckley.

Further, (in text messages) you have made further threats attempting to extort the funds from Mr. Buckley. These threats have been referred onto the Police as well.

Let us make this blatantly clear:

Neither the Company, nor the Group, nor Mr. Buckley, nor anyone associated with them owe you any money whatsoever. And it goes without saying that even if you had any claim, which is specifically denied, it would not warrant the behaviour you have engaged in.

Your employment (at the Toybox) was ultimately terminated due to multiple, repeated and severe breaches of your employment contract.

……….”

Hearing

[10] The jurisdictional matters of this application were heard before me by telephone on 6 May 2020 and 19 May 2020. Mr Dale Curtis, Managing Director of Tresola Legal was granted leave to appear for Mr Seoud. Mr Lachlan Watts of Counsel was granted leave to appear for the Respondent. Mr Watts was instructed by Mr Ian Hone, Solicitor of Hone Legal & Conveyancing and Mr Tony Truong, Corporate Solicitor of Ultra Tune.

[11] Mr Seoud attended the hearing and gave evidence. The following persons were called as witnesses and gave evidence for the Respondent:

• Mr Peter Sean Buckley, Director of the Respondent and Executive Director of Ultra Group;

• Ms Robyn Bull, Accounts Manager for Ultra Tune and its related corporate entities;

• Mr Anthony Swords, Risk Manager of Ultra Group;

• Ms Tarah Bull, Assistant Accounts Manager for Ultra Tune and its related corporate entities;

• Mr Joshua Torrington, Promotions Manager of the Respondent;

• Ms Tarra Mann-McLean, Director of the Respondent; and

• Mr Tony Truong, Corporate Solicitor of Ultra Tune.

[12] The parties filed final written submissions regarding the two jurisdiction issues on 1 June 2020 and 5 June 2020. Whilst not all the submissions and evidence of the parties are referred to in this decision, all of such have been considered.

[13] While I ruled during the hearing that I would not admit some parts of Mr Buckley’s second statement into evidence, I consider it necessary, given the extension of time issue to have regard to some of the oral evidence relevant to Mr Seoud’s end of employment and allegations of gang bashings. The reasons why will become clear throughout this decision.

Evidence of the Respondent

Evidence of Peter Sean Buckley

[14] Mr Buckley made two witness statements and appeared and gave evidence at the hearing. Mr Buckley stated that he has known Mr Seoud for approximately 12 to 13 years, and Mr Seoud’s family has a background in the food and beverage industry, operating one of Melbourne’s leading reception centres in Darling Street, South Yarra for a significant period of time.

[15] In oral evidence, Mr Buckley stated that in around 2014 he returned from overseas and his marriage over, he moved into an apartment in Melbourne owned by him or by one of his businesses. His best guess is that he or his businesses own approximately 30 – 40 properties.

[16] He permitted Mr Seoud to move into an apartment across the hall from him at no cost to Mr Seoud. Mr Buckley stated that he was lonely, and he considered it a good idea for Mr Seoud, who was well-connected, to introduce him to his network of friends and associates.

[17] Mr Seoud then began performing duties for Mr Buckley which included driving him to Family Law Court matters on account of his divorce and custody proceedings in the Court which lasted for around 2.5 years. Mr Buckley explained that there wasn’t much for Mr Seoud to do, but he was happy to pay for Mr Seoud to do various things he required of him. Mr Buckley considered that Mr Seoud helped him, including throwing parties where Mr Buckley said he met lots of people. Mr Buckley stated, “I wanted him around. He filled a void in my life, and I was willing to pay for it”.

[18] During the hearing I inquired how payments were made to Mr Seoud for this particular time span. Mr Buckley said that he asked Ms Robyn Bull to pay Mr Seoud. In oral evidence he first stated that he had personally paid Mr Seoud, later explaining that he considers his various company accounts as “his” accounts. He stated, “Believe it or not, this is going to be weird; I do not have a bank account. I haven’t had one for 25 years. I consider the Ultra Tune accounts to be mine. I have no shareholders to answer to. I consider the payment to Mr Seoud to be personal”.

[19] Mr Buckley allowed Mr Seoud to live in the Southbank (Melbourne) apartment from 2014, without charge.

[20] In or about early 2018, Mr Buckley asked Mr Seoud to supervise renovations being carried out at Mr Buckley’s property at Aria in Surfers Paradise. While residing in Surfers Paradise, Mr Buckley permitted Mr Seoud to live rent-free at a unit in the Mantra Crown Towers complex owned by Clarson Properties, an associated entity of the Respondent. Mr Buckley is a Director of Clarson Properties.¹

[21] In more recent years, Mr Buckley stated that he used to go to the Hollywood Showgirls strip club on the Gold Coast until he and Mr Seoud were banned from attending. He told Mr Seoud to find him a strip club to buy and he then purchased the Club. It was purchased in June 2018 by his trustee company, Clarson Holdings Pty Ltd, to which he is also a Director.²

[22] He thought Mr Seoud’s move to the Gold Coast would make both himself and Mr Seoud happy. He thought it would provide security to Mr Seoud. He wished to make the relocation to Queensland for Mr Seoud a good move.

[23] On account of Mr Seoud’s background in the food and beverage industry, Mr Buckley considered that Mr Seoud would be well-qualified to run the Club. Mr Seoud undertook the necessary courses as required by the regulations to be a controller of the Club.

[24] On 12 June 2018, Mr Buckley appointed Mr Seoud as a director of the Respondent company and confirmed he would employ him to manage the business. The contractual terms were agreed in an employment agreement dated 5 July 2018.³

[25] A 20% profit share of the Respondent’s annual earnings before interest, tax and depreciation was agreed to incentivise Mr Seoud to grow the business. The incentive agreement was agreed in writing. The terms of the employment agreement and incentive agreement were signed and returned by Mr Seoud in early September 2018.⁴

[26] Mr Seoud lived in the Mantra Crown Towers apartment without charge. The apartment is only a couple of kilometres from the Club, and Mr Buckley considered it would be advantageous to have Mr Seoud in close proximity to the Club and be on-call whenever he might be needed.

[27] Mr Buckley stated that a couple of months into Mr Seoud’s employment, he said to Mr Seoud that they needed to formalise his occupation at the Mantra Crown Towers apartment. Mr Buckley proposed to Mr Seoud that as part of his employment package he could continue to have exclusive occupation of the Mantra Crown Towers apartment rent-free, and all outgoings would be paid by the Respondent as part of his salary package. Mr Buckley stated that Mr Seoud agreed to this proposal.

[28] In around June or July 2018, Mr Buckley employed Mr Swords. Mr Buckley was quickly impressed by Mr Swords. He began managing Mr Buckley’s stud farms and horse interests, and after a short while Mr Buckley moved him into property management.

[29] One of Mr Swords’ actions was to remove Mr Seoud from the Melbourne apartment, given he was living on the Gold Coast in another of Mr Buckley’s properties. Mr Buckley wanted to then rent the Melbourne apartment out to a third party. Mr Buckley agreed to pay to Mr Seoud an amount on account of accommodation left behind by Mr Seoud.

[30] Mr Swords began formalising lease and rental arrangements on the properties owned by Mr Buckley and his various corporate entities. Mr Buckley stated that he had been informed by his external accountants that the various entities had fringe benefit tax (FBT) liabilities and this had been discovered via tax audits. He stated that he had been receiving poor financial advice from an earlier external accountant, and new external accountants set him on the right track.

[31] He was given advice to ensure that there were effective lease agreements to his various properties. Mr Swords helped him pull this together. He stated, “It was pretty messy”. His generosity extends to providing to a former secretary a house to live in rent-free for the rest of her life. He cannot recall how many other employees he allows to live rent-free in his various properties.

[32] Mr Buckley stated that he asked his legal team to prepare the Accommodation Agreement at [68]. He can’t recall which one of his legal team he asked to do this. In cross-examination Mr Buckley was asked who requested he sign the Accommodation Agreement that has been produced by the Respondent in these proceedings. Mr Buckley stated that he knows that he signed it on the Gold Coast, but his memory is not very good anymore to remember finer details. He stated that he signs approximately 5000-6000 documents per year.

[33] In or about March 2019, Mr Seoud stated to Mr Buckley that the Club’s turnover was about to ‘explode’ and make a lot of money as a result of his efforts in promoting the Club around Australia and within the Australian boxing fraternity. Mr Seoud wished to forego a pay increase for this potential growth, and instead he wanted the Respondent to provide him with a new ‘flashy sports car’. Mr Buckley considered that this would be for both personal use and as part of Mr Seoud’s salary package.⁵

[34] Mr Buckley stated that Mr Seoud referenced a Mercedes-Benz convertible that would cost around $180,000. Mr Buckley agreed to Mr Seoud’s proposal and left it up to Mr Seoud to choose a car and arrange its purchase.

[35] Mr Seoud decided that he wanted a two door Mercedes-Benz AMG C63 S Cab soft top convertible sports car (the Mercedes-Benz sport car), and he negotiated the purchase of the vehicle with Mercedes-Benz on the Gold Coast. Mr Buckley stated that he was not involved in the purchase of the vehicle, aside for signing the finance agreement. The total purchase price including registration, compulsory third-party insurance and other extras was $184,000, which was partly financed by the Respondent entering into a commercial finance agreement with Metro Finance Pty Ltd in the sum of $150,990. Under the finance agreement the Respondent is required to repay the loan by way of 60 monthly instalments each in the sum of $2,322.39 and a final instalment at the end of approximately $45,297. Copies of the Finance Tax Invoice from Mercedes-Benz Brighton dated 1 April 2019 and the Commercial Finance Agreement entered into with Metro Finance Pty Ltd were annexed to Mr Buckley’s first witness statement.⁶

[36] Mr Buckley stated that the variation to Mr Seoud’s employment agreement in respect to the provision of the Mercedes-Benz car was documented in a motor vehicle agreement dated 5 May 2019 (the Motor Vehicle Agreement).⁷ The Motor Vehicle Agreement is as follows:

“THIS AGREEMENT is made on 5th day of May 2019.

BETWEEN

NRA ENTERPRISES PTY LTDE (ACN 125 036 302) of

[address] (“NRA”);

AND:

JIMMY SEOUD of [address] (“Seoud”)

WHEREAS:

A. NRA is the fully owned shareholder of Clarson Holdings Pty Ltd.

B. Motor Vehicle 2019 Mercedes Benz Cabriolet – AMG C63 205

registration no: MRVEGAS.

VIN No: [redacted]

Engine No: [redacted]

C. This agreement is an amendment to Seoud’s employment contract dated 5^th July 2018.

NOW THIS DEED WITNESSETH and the parties here to hereby covenant and agree as follows:

1. In this Agreement unless the context otherwise requires:

(a) “Motor Vehicle” registration no ………………..

2. TERMINATION OF AGREEMENT

2.1 In the event that Seoud:

(a) Ceases to be employed by NRA.

(b) Ceases to be a Manager of the Business for any reason.

(d) Acts dishonestly in the operation of the Business.

(e) Acts fraudulently in the operation of the Business.

(f) Is convicted of any offence that contains an element of fraud, dishonestly or deception.

(g) Is involved in the sale or distribution of illicit drugs.

Then this agreement shall immediately end.

3. Seoud is required:

(a) Seoud will be provided with a fully maintained company vehicle

(b) Seoud will be responsible for the motor vehicle and its use in accordance with the Employer’s company policy.

(c) Seoud will be responsible for all fines penalties and traffic infringements whilst the motor vehicle is assigned to him.

(d) At the Employer’s request, you may be required to maintain a logbook detailing usage of the motor vehicle.

(e) During any leave you will be responsible and shall pay for the fuel and tolls used by the motor vehicle.

(f) At the end of the contract you will be required to return the motor vehicle in a clean, good and working condition (save for fair wear and tear).

4. Time shall be of the essence

5. Save to give effect to this agreement, the parties hereto agree that this Agreement shall remain confidential between the parties and shall not be disclosed to any person without the prior written consent of the other parties hereto first obtained or order of the Court.

EXECUTED as a deed of the date referred to above

EXECUTED by CLARSON PROPERTIES PTY LTD in accordance with section 127(1) of the Corporations Act by:

………………..

Peter Sean Buckley

Director

SIGNED SEALED and DELIVERED by

JIMMY SEOUD in the presence of: ………………..

Jimmy Seoud

………………..

Witness

…”

[37] Mr Buckley stated that the Mercedes-Benz sports car was provided by the Respondent to Mr Seoud for his personal use. Mr Buckley stated that he has been informed by a member of the Respondent’s staff and verily believes that Mr Seoud used the Mercedes-Benz sports car on several occasions to purchase small quantities of additional liquor from the local Dan Murphy’s or BWS stores for the Club. Mr Buckley does not know why Mr Seoud purportedly used the Mercedes-Benz sports car on these occasions as the Respondent owns a stretch limousine and a Mercedes-Benz Vito van, which in the ordinary course should have been used for that purpose.

[38] Relevant to how Mr Seoud’s dismissal came to be, and on which date, Mr Buckley’s oral evidence is that Mr Seoud had somehow become caught up in a dispute with ‘middle eastern gang members’ who were either trying to recover a drug debt owed by Mr Seoud, or threatening the Club, demanding protection money. Mr Buckley ended up meeting with a person on two occasions who demanded money in the vicinity of $85,000. Mr Buckley and Mr Seoud met with members of the Queensland Police, including Taskforce officers. The conduct of the individual with whom Mr Buckley met and the ‘gang’ was reported.

[39] It was agreed that Mr Seoud should leave Australia for a while and Mr Buckley assisted with payment for Mr Seoud to travel to Bali. He reimbursed Mr Seoud approximately $3,000 for flights to Bali.

[40] Mr Buckley stated that he was scared for his life, and he hired a bodyguard to protect him. He was very concerned that Mr Seoud was going to be hurt by members of the gang.

[41] Mr Buckley spoke with Mr Seoud by telephone on 15 December 2019. Mr Buckley thought that Mr Seoud was in Bali at this time, but he had returned to Brisbane on the same date, unbeknownst to Mr Buckley. Mr Buckley stated that the phone call was 22 minutes long, and a strategy was decided; Mr Seoud would move to Melbourne and be removed as a director of the Respondent. Mr Buckley stated that despite Mr Seoud allegedly owing money to people, he didn’t want to see him get hurt. Mr Buckley was on very good terms with Mr Seoud’s sister, having known her for 22 years.

[42] Mr Buckley told Mr Seoud to deal with Mr Swords. Mr Buckley wanted Mr Seoud in Melbourne, safe and with an income. Mr Buckley spoke with Mr Seoud’s sister twice, and on one occasion Mr Watts of Counsel was on the call, which Mr Buckley states demonstrates the genuine concern Mr Buckley had for Mr Seoud’s welfare.

[43] In answering questions from me relevant to the date of the dismissal, Mr Buckley stated that on 15 December 2019, he told Mr Seoud that he was going to:

(a) Remove him from the board of directors;

(b) Dismiss him;

(d) Request Mr Seoud’s email address; and

(e) Ask that he deal with Mr Swords.

[44] Mr Buckley considered that the situation was getting out of control and he was concerned about being further dragged into the dispute between Mr Seoud and the gang. He determined that it was unlikely Mr Seoud could ever return to the Club, and the issues could put the Respondent’s adult entertainment licence in jeopardy. He decided to remove Mr Seoud as a director and secretary of the Respondent. Copies of the Minutes of a Meeting of Members of the Respondent dated 17 December 2019, and an ASIC Form 484 changing the Respondent company’s details on 17 December 2019 were annexed to Mr Buckley’s second witness statement.⁸

[45] Mr Buckley stated that he was aware that Mr Seoud had unsuccessfully applied for WorkCover; it being rejected on account of him being a director of the Respondent.

[46] Mr Buckley considered that on 15 December 2019 the employment had come to an end. Mr Buckley instructed one of his corporate solicitors, Mr Albert Chong, to send an email to Mr Seoud offering him a position in a customer support role with Ultra Tune in Melbourne. The role would be general administrative duties and other duties as required for an annual salary of $112,000. The contract of employment was emailed by Mr Chong to Mr Seoud on 19 December 2019.

[47] Around this time Mr Buckley was contacted by Mr Joshua Torrington who told him that he was aware of irregularities in the way in which Mr Seoud managed the Club such as free entertainment for his guests, taking copious amounts of liquor away from the Club and a further serious allegation. As a result of his conversation with Mr Torrington, Mr Buckley instructed an external solicitor, Mr Ian Hone, to email Mr Seoud a letter dated 27 December 2019 about the cessation of his employment, as set out above at [9].

[48] Mr Buckley’s evidence is that prior to the letter being sent on 27 December 2019, Mr Seoud had abused him and also contacted Mr Buckley’s girlfriend. I inquired of Mr Buckley if Mr Seoud would have considered, up until 27 December 2019 that Mr Buckley and Ultra Tune were looking after him? Mr Buckley said that was a fair assessment.

[49] Mr Buckley’s oral evidence is that after the letter of 27 December 2019 was sent, other staff came forward to report concerns and irregularities. In early January 2020 Mr Hone flew to the Gold Coast to take statements from Club staff members. Following the dismissal Mr Buckley discovered that Mr Seoud had generated a large drinks tab. He stated that he was upset and shocked by that. He considered that Mr Seoud was putting a lot of drinks on the tab for a lot of people.

[50] Relevant to unpaid FBT for benefits provided to Mr Seoud, Mr Buckley stated that it was his understanding that around $30,000-$40,000 was owing for the accommodation provided, together with approximately $15,000 for the vehicle.

Evidence of Ms Robyn Bull

[51] Ms Robyn Bull made a witness statement and appeared and gave evidence at the jurisdiction hearing. Ms Bull is the Accounts Manager for Ultra Tune and its related corporate entities, including Clarson Properties. Her duties include:

• Preparing financial documents such as invoices, bills, and accounts payable and receivable;

• Completing bank reconciliations;

• Preparing financial reports;

• Initiating payments for various expenses of Ultra Tune and its related entities;

• Entering financial information into appropriate software programs;

• Managing day-to-day transactions;

• Managing payroll; and

• Reconciling Intercompany transactions.

[52] On 28 November 2019, Ms Bull received an email from Mr Seoud which stated:

“Hi ladies,

Due to unforeseen circumstances I have no choice but to lodge in this work cover claim. I have been forced to leave the Gold Coast due to my life and well-being is in danger and my anxiety and depression levels have hit the roof. I have been to doctors and I am on heavy medication to try and help me. Please feel free to call myself or Sean to discuss but in the interim I need you to start the process and lodge my claim please.”

[53] Attached to Mr Seoud’s email of 28 November 2019 was a Queensland workers’ compensation medical certificate dated 28 November 2019, which stated in summary that:

• Mr Seoud was suffering from anxiety disorder;

• The Club was being extorted by a local gang/group which had triggered significant anxiety and risks to personal safety for Mr Seoud at his workplace; and

• The medical management plan was for Mr Seoud to stay away from work noting that he was “planning to leave to remove self from risk” and had been prescribed Valium.⁹

[54] On 5 December 2019, Ms Bull was copied into an email sent from Mr Seoud to Mr Chong which stated:

“Hi Albert,

I have spoken to work cover and that have informed me that I am not eligible for work cover as I am a director of nra enterprises and its Queensland legislation that directors are not covered. Dean has asked if you can look into it and see what options we have and maybe call Nicole to discuss.”

[55] At the hearing Ms Bull was asked questions relevant to payments made to Mr Seoud since he became an acquaintance of Mr Buckley in 2014. Ms Bull stated that she has no formal accounting qualifications and relies on external accountants to oversee complicated issues and FBT.

[56] She stated that Mr Seoud was not employed as an employee in 2014, and instead was a contractor. She paid to him whatever Mr Buckley instructed her to. Sometimes this amount varied. Mr Seoud did not produce invoices for payment. She made payment into his bank account without any deduction for taxation.

[57] Only when Mr Seoud became an employee of the Respondent did she remit taxation and pay superannuation into Mr Seoud’s superannuation account.

[58] She agreed that she knew that he was living rent-free in the accommodation in Melbourne and on the Gold Coast. She did not deal with FBT in respect of this benefit.

[59] Relevant to boxing events sponsored by Ultra Tune and attended by Mr Seoud, Ms Bull produced invoices demonstrating there were boxing events on the following dates:

• 19 March 2019 – Kingscliffe Boxing

• 27 March 2019 – Kingscliffe Boxing

• 6 June 2019 – Kingscliffe Boxing

• 8 June 2019 – Ace Boxing

• 25 September 2019 – Ace Boxing

[60] In cross-examination Ms Bull stated that she had been working for Ultra Tune for 12 years. She has not seen the Accommodation Agreement and has not calculated FBT for accommodation for anybody. She agreed that there are a number of employees who have FBT on their payment summaries.

[61] Ms Bull stated that she did not know what Mr Seoud did in order to be paid as a consultant from 2014. He was paid by Ultra Tune and she simply paid to him whatever Mr Buckley instructed her to.

[62] Ms Bull is working from home and has now been directed to allocate an FBT allowance for accommodation in respect of Mr Seoud’s occupation of the apartment. At the time of the hearing she was about to commence a course on superannuation with the Australian Taxation Office.

Evidence of Anthony Swords

[63] Mr Swords made a witness statement and appeared and gave evidence at the jurisdiction hearing. Mr Swords is currently a Risk Manager for the Ultra Group companies. Clarson Properties has a substantial portfolio of properties in Queensland, New South Wales and Victoria. These properties include commercial offices, stud farms, residential houses and residential apartments.

[64] Mr Swords was initially employed by Ultra Thoroughbred Racing Pty Ltd as its General Manager overseeing the operations of the stud farms in New South Wales and Victoria. In approximately November 2018, Mr Buckley requested, and Mr Swords agreed that his employment duties would extend to include being the property manager for all the properties owned by Clarson Properties, in addition to the stud farms. In this role he carries out regular inspections of the properties, assessing what repairs/maintenance are required from time-to-time, organising repairs/maintenance when required, ensuring that where the properties are occupied by third parties that proper leases or license agreements are in place and that rent is up to-date. Prior to Mr Swords’ appointment these duties had been performed on an ad-hoc basis by various people in the Ultra Group of companies, with no one having specific responsibility for any particular aspect of managing the property portfolio.¹⁰

[65] At the time Mr Swords commenced his property management role for Clarson Properties, he went around Australia inspecting and familiarising myself with all of the properties. During this time he ascertained that:¹¹

• There were a number of properties that were either vacant or where there is no lease in place and rent was being paid sporadically;

• Two of the properties were occupied (on the basis that he had exclusive occupation rights) by Mr Seoud, namely a two-bedroom apartment at Mantra Crown Towers, Surfers Paradise, and an apartment in Southbank, Melbourne; and

• Mr Seoud was living most of the time at the Crown Towers apartment as he was employed by the Respondent on the Gold Coast but used the Southbank Melbourne from time-to-time when he visited Melbourne.

[66] Mr Swords stated that he advised My Buckley that as Mr Seoud was living in the Mantra Crown Towers apartment, his occupation at the Southbank, Melbourne apartment should be terminated. After Mr Buckley agreed, Mr Swords instructed Mr Chong to email Mr Seoud to advise that the Southbank, Melbourne apartment would be leased to a member of the public and request that Mr Seoud remove his possessions from that apartment.¹²

[67] Mr Swords stated that a short time later, Mr Buckley informed him that Mr Seoud had said to Mr Buckley that it was unfair to terminate his occupation at the Southbank, Melbourne apartment. Mr Seoud accused Mr Swords of picking on him. On 21 February 2019, Ms Robyn Bull forwarded to Mr Swords an email she had received from Mr Seoud on 1 February 2019. The email stated that Mr Seoud had left behind a number of items of furniture which had a total price of $8,000, and he requested that sum be paid to him, together with moving expenses. Mr Swords stated that he did not think Ultra Group should pay anything to Mr Seoud for the costs associated with vacating the Southbank, Melbourne apartment, and he said to Mr Buckley that it was a matter for him to deal with.

[68] Shortly after the Southbank, Melbourne issue had been resolved, Mr Swords informed Mr Buckley that Mr Seoud’s occupation at the Mantra Crown Towers apartment needed to be documented, to which Mr Buckley agreed. It is the evidence of Mr Swords that this led to an accommodation agreement being entered into. A copy of the Accommodation Agreement was annexed to Mr Swords’ witness statement.¹³ The Accommodation Agreement provided as follows:

“ACCOMMODATION AGREEMENT is made on 1st day of August 2018.

BETWEEN	CLARSON PROPERTIES PTY LTD (ACN 161 591 680) of [address] (“Clarson”);
AND:	JIMMY SEOUD of [address] (“Seoud”)

WHEREAS:

A. Clarson Holdings is the fully owned shareholder of Clarson Properties.

B. Accommodation occupied [apartment] (“Clarson Apartment”).

C. NRA the employer is a subsidiary of Clarson Holdings and Independently and separately from the agreements referred to in recitals A and B as a tenant at will.

D. This agreement is an amendment to Mr Seoud’s employment contract dated 5^th July 2018.

NOW THIS DEED WITNESSETH and the parties here to hereby covenant and agree as follows:

1. In this Agreement unless the context otherwise requires:

(a) “Accommodation” means the sole use of the Clarson Apartment.

2. TERMINATION OF AGREEMENT

a. In the event that Seoud:

(a) Ceases to be employed by NRA.

(b) Ceases to be a Manager of the Business for any reason.

(d) Acts dishonestly in the operation of the Business.

(e) Acts fraudulently in the operation of the Business.

(f) Is convicted of any offence that contains an element of fraud, dishonestly or deception.

(g) Is involved in the sale or distribution of illicit drugs.

Then this agreement shall immediately end.

3. Time shall be of the essence

4. Save to give effect to this agreement, the parties hereto agree that this Agreement shall remain confidential between the parties and shall not be disclosed to any person without the prior written consent of the other parties hereto first obtained or order of a Court.

EXECUTED as a deed of the date referred to above

EXECUTED by CLARSON PROPERTIES PTY LTD in accordance with section 127(1) of the Corporations Act by:

………………..

Peter Sean Buckley

Director

SIGNED SEALED and DELIVERED by

JIMMY SEOUD in the presence of: ………………..

Jimmy Seoud

………………..

Witness

…..”

[69] Mr Swords swore the following:¹⁴

“I took the Accommodation Agreement with me to Queensland on one of my numerous visits to Queensland at this time. I wanted to witness Mr Seoud signing the Accommodation Agreement as I had known Mr Seoud for approximately 15 years and I did not trust him. I wanted to be in a position to say that I had seen him sign the Accommodation Agreement. I met with Mr Seoud at NRA’s premises and requested that he sign it. Mr Seoud signed the Accommodation Agreement in my presence and I witnessed his signature. Mr Seoud said to me because of what I had done to him with the Southbank he wanted to keep the original and to hand back a copy. However, there were problems with the photocopier and, as I needed to leave, I left the original with him on the basis that when he got the Accommodation Agreement photocopied he would send the copy to Melbourne and that I would follow him up if the copy was not sent to Melbourne.”

[70] During the hearing Mr Swords was asked in-chief if there had ever been any physical altercations between himself and Mr Seoud. He described the filming of an Ultra Tune television commercial with the actor Charlie Sheen, where Mr Seoud arrived uninvited to the set. Mr Swords stated that Mr Seoud wasn’t permitted to go to dinner with the group and Charlie Sheen on account that he hadn’t attended for work at the Club. He stated that Mr Seoud became frustrated and aggressive towards security. Mr Swords tried to calm him down and words were exchanged. Mr Seoud shaped up to hit Mr Swords, but Mr Swords struck him first. Mr Swords stated that while he has known Mr Seoud for 15 years, that has been the only physical altercation with him.

[71] In cross-examination Mr Swords stated that he was originally employed to look after Ultra Thoroughbreds involving around 30 staff and around 300 horses. He could see that money was flying out the door. He said that he had to turn it around to first break even and then to make a profit. Following that he has been given other roles within Ultra Hair (another business within the Ultra Tune group) and the Respondent.

[72] As to the physical copy of the Accommodation Agreement, Mr Swords’ evidence is that it was left in a physical outbox tray in the office at Ultra Tune in Melbourne. He was told there was a document to take to Queensland to get signed. Mr Buckley asked him to fly to Queensland. He said the document was sitting in the tray for about a week.

[73] During the hearing he nominated his trip as 16 August 2018, Melbourne to Brisbane, returning 22 August 2018. He stated that he “would have” hired a car from Brisbane to the Gold Coast. When I pointed out that there is a difference between what he would have done and what he actually did, he was unable to say how he travelled from Brisbane to the Gold Coast. There was a significant gap of several minutes during the hearing where Mr Swords failed to respond when asked to confirm he was still on the line.

[74] Upon returning to the call he stated that he dropped out of the call, however I have considerable doubt that this occurred by accident. Resuming, Mr Swords could not recall if he hired a car, was picked up by staff or whether Mr Buckley picked him up.

[75] Mr Swords recalled that he flew into Brisbane and it might have been the next day that the Accommodation Agreement was signed. He stated that he did not bring a copy of the signed agreement home with him. When asked why he only took one original to have signed if his evidence is that he didn’t trust Mr Seoud, he answered that when he arrived at Mr Seoud’s apartment he was standing there in his underwear, sweating his head off like “he was coming off a drug bender”, and Mr Swords did not want to be there.

[76] Mr Swords was reminded that his affidavit stated that it was the NRA premises where he had Mr Seoud sign the Accommodation Agreement. He responded, “I went to the NRA apartment. He had an office in there. I think there was a photocopier in there”.

[77] Mr Swords’ evidence is that Mr Seoud was stating that the photocopier was ‘stuffed’ so he took him for his word. Mr Swords believed it was Mr Seoud who was the one who wanted the agreement. Mr Swords wanted a copy for his own records. He asked Mr Seoud if they could go to the Club to get a copy to which Mr Seoud said no. Mr Swords asked if they could go to Officeworks to get a copy to which Mr Seoud said no.

[78] I asked Mr Sword why he wouldn’t take a photo of a signed agreement on his phone? He stated that he wasn’t feeling well. He said that he wasn’t really interested in taking a document to Melbourne. He said that Mr Seoud had the shits with him because Mr Sword was trying to straighten up the company.

[79] A fair way into Mr Swords’ oral evidence he asked the Commission, “Would you like the truth?” I stated to Mr Swords that I expected the truth from the moment he first gave evidence after taking his affirmation. Mr Swords stated that he wanted to “get out of the environment”, meaning, according to Mr Swords, the apartment and observing Mr Seoud in his underwear.

[80] Mr Swords stated that in or about late March/early April 2019, Mr Buckley informed him that he had agreed to a request made by Mr Seoud to provide Mr Seoud with a wage increase to be taken in the form of the Respondent supplying to him a Mercedes-Benz C63 sports car as part of his employment package.¹⁵ Mr Swords stated that on hearing this news, he gave Mr Buckley two pieces of advice being:¹⁶

1. That the pay rise in the purchase of the car was a ‘crazy idea’, that he (Mr Buckley) was ‘mad’ to have agreed to Mr Seoud’s request, that in his opinion Mr Seoud was mismanaging NRA’s business and robbing the business blind, and that if things went bad with Mr Seoud then in all likelihood Mr Buckley would have difficulties in recovering the car. He said to Mr Buckley that to protect his position in this eventuality, the purchase of the car should be externally financed which would then mean that pressure could be brought to bear through a financier on Mr Seoud to return the car. Mr Buckley agreed to Mr Swords’ suggestion and the purchase of the car was substantially funded through finance obtained from Metro Finance; and

2. That Mr Buckley needed to document the variation of Mr Seoud’s employment agreement in respect to the provision of the Mercedes-Benz sports car.

[81] Mr Swords’ written evidence as to how Mr Seoud signed the Motor Vehicle Agreement is set out below:¹⁷

“I took the vehicle agreement with me on one of my trips to Queensland to get signed by Mr Seoud. I took it with me for the same reason that I took the accommodation agreement. Again I met with Mr Seoud at NRA’s premises and witnessed Mr Seoud signing the vehicle agreement. As with the accommodation agreement Mr Seoud wanted to keep the original and get a photocopy which he would send to Melbourne. Again I agreed on the basis that if a copy was not sent to Melbourne that I would be following the matter with him.”

[82] In oral evidence, Mr Swords stated that he met with Mr Seoud at a restaurant two doors up from the Club to sign the Motor Vehicle Agreement. His oral evidence is inconsistent with his written evidence.

[83] Mr Swords stated that in December 2019 he was informed by Mr Buckley that Mr Seoud would be vacating the Mantra Crown Towers apartment; Mr Buckley asked Mr Swords to supervise this. Mr Swords contacted Mr Seoud and asked him whether he would like any assistance to move out of the Mantra Crown Towers apartment. On 16 December 2019 at 9:24am Mr Seoud sent the following text message to Mr Swords:¹⁸

“Thankyou for offering your help but I have already started the process in moving my stuff out as I told Sean it will be done. As for the car Sean knowns it been transported to Melbourne and it’s in transaction!! So I’m all good mate Thankyou !!!”

[84] Mr Swords stated that on 18 December 2019, he went to the Mantra Crown Towers apartment in the company of a security guard of Taylor M Security (Mr Santino Celona). He attended the front desk concierge with Mr Celona and produced a written authority from Clarson Properties to attend the apartment. Mr Celona asked the concierge whether any fob keys associated with the apartment has been used that morning. The person at the front desk replied that the fob key associated with the apartment had been used 10 minutes before their arrival. Mr Celona instructed the person at the front desk to cancel all the fob keys associated with the apartment.¹⁹

[85] Mr Swords had arranged a locksmith to change the locks on the apartment, and the three of them waited in the lobby. A short time later a man, who Mr Swords knows to be Mr Andrew Seoud, the Applicant’s brother, together with a person known to Mr Swords as ‘Radar’ attended the front desk concierge. Mr Celona introduced himself to Mr Andrew Seoud and Radar. Mr Swords took an image of the front desk concierge at this time. A copy of the image was annexed to Mr Swords’ witness statement.²⁰

[86] Mr Andrew Seoud and Radar said that they had been moving Mr Seoud’s possessions out of the apartment and wanted to finish doing so. Mr Swords, Mr Celona and the locksmith accompanied Mr Andrew Seoud and Radar to the apartment and watched as they moved the remainder of Mr Seoud’s possessions out of the apartment. Mr Swords further stated as follows:²¹

“By about 2 PM, Andrew Seoud and Radar had finished moving Mr Seoud’s possessions out of the apartment and had loaded the possessions into a white truck. Andrew Seoud then drove myself and Mr Celona in the truck to NRA’s premises, where we entered Mr Seoud’s office and were joined by of Tarrah Mann-Mclean of NRA. I cannot remember whether I then telephoned Mr Jimmy Seoud of whether he then telephoned me, but I had my phone on loudspeaker and then I spoke with Mr Jimmy Seoud. Mr Jimmy Seoud said to me that he wanted his brother to take all his private papers but that anything belonging to NRA had to remain. With Mr Jimmy Seoud on loudspeaker, we then proceeded to work from the left side of the room to the right-hand side, and from draw to draw in the desk and file by file to identify which documents belong to Mr Jimmy Seoud. In this course of this process I recollect seeing a loan document in the name of DDU for a Mazda 3. I didn’t recognise that name and I asked Andrew Seoud what it stood for to which he said to me that it stood for Daiquiri Down Under. Other documents that I remember sighting included Mr Jimmy Seoud’s liquor licensing certificate, various credit card bills, legal documents related to a law case over Mr Seoud’s parents’ estates, the Accommodation Agreement and the Vehicle Agreement which I recollected from having taken them to Mr Seoud for signing.”

[87] Mr Swords stated that Mr Andrew Seoud placed Mr Seoud’s papers into boxes whereupon they were loaded into the white truck. Mr Swords and Mr Celona subsequently returned to the apartment where a woman turned up who said she wanted to collect her belongings. A photograph of the second bedroom of the Mantra Crown Towers apartment was annexed to Mr Swords’ witness statement.²² The image shows belongings on a bedroom floor including a hair straightener, hair dryer, female underwear and sunglasses.

[88] Mr Swords stated that the woman who turned up to collect belongings from the apartment said to him that she had been staying at the apartment with Mr Andrew Seoud and Radar while Mr Seoud was in Bali.

[89] When it was put to him that he could not have witnessed Mr Seoud’s signature on the Accommodation Agreement and Motor Vehicle Agreement because Mr Seoud did not sign them, he stated that he did witness Mr Seoud’s signature and one of Mr Buckley’s signatures on the two documents. I questioned Mr Sword as to whether he forged Mr Seoud’s signature on the Accommodation Agreement and the Motor Vehicle Agreement. He denied doing so. Mr Curtis submitted that he is not suggesting that Mr Swords is the architect of the false signatures of Mr Seoud on the two documents. I informed Mr Swords that if Mr Seoud did not sign the documents then he could not have witnessed Mr Seoud signing them. I asked him what he thought of that proposition. He replied that Mr Seoud is lying.

Evidence of Tarah Bull

[90] Ms Tarah Bull made a witness statement and appeared and gave evidence at the jurisdiction hearing. Ms Tarah Bull is an Assistant Accounts Manager of Ultra Tune and its related corporate entities, including the Respondent company. She is Ms Robyn Bull’s daughter. Ms Tarah Bull’s duties include:

• Preparing financial documents such as invoices, bills, and accounts payable and receivable;

• Completing bank reconciliations;

• Entering financial information into appropriate software programs;

• Managing day-to-day transaction; and

• Managing payroll.

[91] Ms Tarah Bull stated that during his employment with the Respondent Mr Seoud was paid a gross salary of $2,250 weekly, the net payment amount after tax being $1,612. On 1 April 2019, the Respondent purchased a Mercedes-Benz sports car for $184,000 which was later registered with the registration “MRVEGAS”.

[92] Ms Tarah Bull stated that the Respondent paid for all expenses in connection with the Mercedes-Benz sports car, and provided the below table summarising the expenses from the Respondent’s accounting records from 1 April 2019 until 31 December 2019:²³

Expense types	Amount (inclusive of GST)
Fuel	$3,006.30
Registration fee	$295.10
Third party cover	$404.80
Car insurance (Attvest Finance - $248.20 per month from 2 June 2019)	$1,737.40
Loan repayment to Metro Finance ($2322.39 per month from 1 June 2019)	$16,256.73

[93] Ms Tarah Bull’s evidence during the hearing included the following:

• Mr Seoud’s bar tab was given to her at the end of each week including all of the drinks put on it by Mr Seoud;

• The bar tab was never paid; it was a way of record keeping;

• Mr Seoud’s accumulated bar tab is $19,387.80.

[94] I held concerns during the hearing that Ms Tarah Bull may have been given a “heads up” relevant to questions she may be asked about Mr Seoud’s bar tab. Her contemporaneous evidence on this issue was surprisingly quick.

[95] Mr Truong gave evidence that during a break he spoke with Ms Tarah Bull and said the following, “The Commissioner is going to contact you. You should have your witness statement with you”. In answering questions from me Mr Truong stated that he did not provide any advance knowledge to Ms Tarah Bull that she would be asked questions about Mr Seoud’s bar tab.

Evidence of Joshua Torrington

[96] Mr Torrington made a witness statement and appeared and gave evidence at the jurisdiction hearing. Mr Torrington is the Promotions Manager of the Club. Mr Torrington’s duties include undertaking the weekly stock-take of alcohol at the Club and chauffeuring the Club’s patrons in the Club’s stretch limousine or Mercedes-Benz Vito passenger van.

[97] During Mr Seoud’s management of the Club it traded on Thursday, Friday, Saturday and Sunday evenings, opening at 8:00 pm. After Mr Seoud’s termination the Club stopped trading on Sunday evenings. Mr Torrington stated that he always did a stock-take of the alcohol prior to the Club opening on Thursday evenings and another stock-take after the Club finished trading on Sunday evenings.

[98] He stated that it was Mr Seoud’s practice to take home alcohol from the Club on the nights he turned up. The alcohol taken by Mr Seoud was recorded in the stock sheets as simply being minus entries with no further notation. There were normally six to eight bottles of vodka taken home by Mr Seoud each week together with other alcohol such as Jack Daniel’s whiskey. Mr Torrington stated that he was often directed by Mr Seoud to load alcohol from the Club into Mr Seoud’s car.²⁴

[99] Mr Torrington stated that under Mr Seoud’s management the Club’s alcohol purchases were averaging out around $4,500-$5,000 per week. After his dismissal the Club’s purchases dropped down to around $1,600-$2,000 a week for about the same number of paying patrons.²⁵

[100] On numerous occasions Mr Seoud directed Mr Torrington to go to Dan Murphy’s or BWS to pick up supplementary alcohol. Mr Torrington stated that he invariably attended to this task using the Club’s stretch limousine or the Mercedes-Benz Vito passenger van. However, there were probably about six occasions when Mr Seoud drove his Mercedes-Benz sports car to either the local Dan Murphy’s or BWS to purchase and pick up supplementary alcohol supplies. Mr Torrington stated that Mr Seoud’s Mercedes-Benz sports car was not used to chauffeur paying patrons of the Club, nor was it used to transport dancers who performed at the Club.²⁶

[101] Mr Torrington stated that on numerous occasions Mr Seoud would hand him the keys to the Mercedes-Benz sports car and ask him to pick up and transport to and from the Club male friends of his who he would then entertain at the Club free of charge. The drinks consumed by Mr Seoud’s friends were recorded on Mr Seoud’s drinks tab. Mr Torrington stated that on multiple occasions Mr Seoud directed him to take his Mercedes-Benz sports car to pick up “girls” who he was entertaining and either drive them to the Club or to his apartment.

[102] Mr Torrington stated that on other occasions, and at all hours of the night he was directed by Mr Seoud to drive dancers and alcohol from the Club to Mr Seoud’s apartment where Mr Seoud would be partying. Mr Torrington stated that nearly every night Mr Seoud attended the Club, Mr Seoud would drive his Mercedes-Benz sports car to the Club, however Mr Torrington was required to drive him back to his apartment and park the car as Mr Seoud would become too drunk at the Club to legally drive home.²⁷

[103] During the hearing Mr Torrington stated that often Mr Seoud’s friends were at the Club and Mr Seoud would provide his friends drinks and put it on his bar tab. The friends included Radar, Mr Seoud’s ex-girlfriend Kathy, Maria and other females.

[104] Mr Torrington stated that he never picked up any paying guests in Mr Seoud’s car. He did drive the car on two occasions for Mr Torrington’s personal journeys including for his brother’s school graduation. He estimates the total kilometres travelled by him to be around 325km.

[105] In cross-examination it was put to Mr Torrington that he had used Mr Seoud’s car to pick up dancers from the airport. Mr Torrington denied this and stated that he had picked up Mr Seoud’s girlfriend from the airport on one occasion, and this girlfriend later became a dancer at the Club.

[106] In cross-examination it was put to Mr Torrington that he had posted on Facebook on 26 May 2019 a video of him driving the said vehicle. Mr Torrington stated that he had Mr Seoud’s ex-girlfriend with him and Mr Seoud had asked him to drive her.

Evidence of Tarra Mann-McLean

[107] Ms Mann-McLean made two witness statements and appeared and gave evidence at the jurisdiction hearing. Ms Mann-McLean is currently a Director of the Respondent having been appointed on 18 December 2019 to replace Mr Seoud. She has worked at the Club as the Assistant Manager since around 2007 when it was owned by a different entity. She is one of the licenced controllers for the Club.

[108] After Mr Buckley’s entity acquired the Club, Ms Mann-McLean reported to Mr Seoud. She stated that throughout Mr Seoud’s employment with the Respondent the Club traded on Thursday, Friday, Saturday and Sunday evenings from 8:00 pm, and she was in attendance at the Club on Thursday, Friday and Saturday evenings.

[109] Mr Buckley decided to provide a limousine service to pick patrons up from their homes, or a restaurant, bar or hotel to transport them to the Club. Mr Buckley informed Ms Mann-McLean that the Club would be supplied with a stretch Ford limousine that was owned by one of Mr Buckley’s companies.²⁸ After the limousine arrived, it was badged with signage advertising the Club. A picture of the Club’s limousine badged with the words ‘Toy Box Gentlemen’s Club’ across the body of the vehicle was included in Ms Mann-McLean’s witness statement.²⁹ Ms Mann-McLean also stated that several months later the Club acquired a second vehicle for transporting patrons, being the Mercedes-Benz passenger van.

[110] In early to mid-2019, Mr Seoud turned up to the Club for work in a Mercedes-Benz sports car with the number plate “MRVEGAS”. She stated that Mr Seoud told her that he had purchased the car himself, however he then said to her that the Mercedes-Benz sports car had been purchased by the Respondent as a gift.³⁰ Ms Mann-McLean stated that Mr Seoud regularly bragged to people in her presence that he owned the car himself.

[111] Ms Mann-McLean stated that she saw the monthly finance expenses for the Mercedes-Benz sports car coming out of the Respondent’s bank account. Due to her long association with the Club and her personal efforts in building up the business, Ms Mann-McLean was furious with Mr Buckley for purchasing the Mercedes-Benz sports car as the Respondent was struggling financially. The monthly finance costs were eating into the cash flow and she was concerned that Mr Seoud was not properly conducting himself as the Club’s manager. She addressed these concerns with Mr Buckley who in turn said to her that the Mercedes-Benz sports car would be a tax write-off.³¹

[112] Ms Mann-McLean stated that the Respondent purchased liquor from two liquor suppliers, Australian Liquor Marketers and Sunstate Liquor Wholesalers. Both suppliers deliver liquor to the Club premises and Mr Seoud was not required to pick-up any liquor supplies for the Club.

[113] She stated that apart from about five or six times where supplementary liquor had to be purchased, the only liquor transported by Mr Seoud in the Mercedes-Benz sports car was liquor that Mr Seoud took from the Club to his apartment. Ms Mann-McLean stated that on several occasions Mr Seoud asked her to take liquor from the Club to put in his car for him. She explained that because he was her boss she did as he requested. However, she was annoyed by him taking liquor from the Club as it interfered with the financial performance of the Club. Staff also regularly complained to Ms Mann-McLean about Mr Seoud requiring them to take bottles of alcohol from the Club to put in his car.

[114] Ms Mann-McLean explained that the Club premises have a number of surveillance cameras including a security camera at reception. There is footage from the reception security camera that recorded an incident on 23 November 2019 at 12:58 am where a group of males were seen arguing with Mr Seoud, and where one of those males hit Mr Seoud on the face. A still image from the reception’s security camera footage was annexed to Ms Mann-McLean’s second witness statement.³²

[115] During the hearing Ms Mann-McLean conceded that the stretch limousine would often break down. She said the Mercedes-Benz passenger van was used to transport patrons to and from the Club. She said she was not aware of Mr Seoud transporting dancers to and from the Club.

[116] She agreed that there were some boxing events where one of Mr Buckley’s companies provided sponsorship. When asked how the dancers attended the events for the purposes of promotion of the Club, she stated that she understood that they made their own travel arrangements. She would require dancers at the Club to be ready to perform by 8:00pm, and permission is required if they need to leave before 3:00am. The dancers are taken to be contractors, not employees.

[117] Relevant to a boxing event in Brisbane, Ms Mann-McLean stated that no dancers were used as “promo girls” for that event.

Evidence of Tony Truong

[118] Mr Truong, a Corporate Solicitor of Ultra Tune, appeared and gave evidence at the hearing.

[119] Mr Truong swore an affidavit on 29 April 2020. I had directed the Respondent to provide to the Commission the original documents of the purported Accommodation Agreement dated 1 August 2018 and the Motor Vehicle Agreement dated 5 May 2019. He stated the following:

“….I have conducted multiple searches on the Respondent’s records. I could not find the original documents or the above-mentioned Agreements.

I have made inquiries to a director of the Respondent being Mr Peter Sean Buckley of whereabouts the original Agreements are. Mr Buckley informed me that:

(a) He did not have the original Agreements;

(b) He signed the Agreements then provided them to his employee being Mr Anthony Swords to witness the signature of the Applicant;

(c) The Applicant is currently in possession of the original Agreements as the Applicant had all his personal documents returned to him by Mr Swords on the 18 December 2019.

I also made inquiries with Mr Swords who informed me that:

(a) He witnessed the signature of the Applicant on both Agreements;

(b) He returned a file containing the original Agreements to the Applicant’s brother on the 18 December 2019; and

[120] At the hearing on the second day I required Mr Truong to give evidence. In cross-examination he agreed he helped draft the witness statements of other witnesses in the proceedings. He stated that he did not draft the Accommodation Agreement. He said that he has “no clue” who did. He commenced with Ultra Tune in July 2018, and the Accommodation Agreement was “prepared” in August 2018.

[121] It was put to him that Mr Buckley had said that it was his legal team who had prepared the Accommodation Agreement. Mr Truong said the legal team is Mr Albert Chong as senior solicitor and himself. Only he and Mr Chong draft legal agreements.

[122] He was taken through the Accommodation Agreement. He was asked by Mr Curtis where does it say in the Accommodation Agreement that Mr Seoud receives benefit of an apartment from the Respondent entity? Mr Truong said it is an amendment to the employment agreement. He thinks it is an express term and also an implied term. He considers Mr Seoud received the benefit of accommodation.

[123] Mr Truong stated, “He has been living in there since the agreement was signed”. It was put to him that Clarson Properties is not the Respondent and was asked what is the relationship between Clarson Properties and the Respondent? He replied that it is in Recital C. It was pointed out that the Accommodation Agreement is with Clarson Properties. How amongst all of that is the apartment part of Mr Seoud’s employment benefits? Mr Truong considered it might be pursuant to Recital D.

[124] Mr Truong stated, “Clarson Properties owns various properties in Australia. Clarson Holdings is the shareholder of NRA. There is a relationship between all of the parties. They are inter-related”.

[125] I asked Mr Truong if Clarson Holdings owns Clarson Properties? Mr Truong replied that Clarson Holdings is the shareholder of Clarson Properties. Mr Truong could not explain the corporate structure of the various entities including how is Clarson Properties and NRA related? Mr Truong replied they are related parties of Clarson Holdings. He was asked to describe the relationship. He said the director of NRA, Mr Buckley is also the director of Clarson Holdings. He was not able to describe the director(s) of Clarson Properties.

[126] Mr Truong was asked what agreements he has in his possession to which he replied that he has a copy of the Accommodation Agreement and Motor Vehicle Agreement. He is unaware when they were provided to the office. They are not date stamped, nor is there a cover letter. He stated that the two signed agreements are held in the accounts department with other employment documents.

[127] Mr Seoud’s typical way of signing documents was put to Mr Truong, noting that Mr Seoud always sign on the dotted line. He was asked his view as to the signatures on the two agreements being well above the line. He stated that he is not a handwriting expert.

[128] Mr Truong stated that he did not draft the Motor Vehicle Agreement and nor did Mr Chong. He can only suggest that some external lawyer prepared the agreements and they were put to Mr Buckley for him to sign without either him or Mr Chong having reviewed them.

[129] Mr Curtis suggested that the documents had only been created recently for the purposes of these proceedings; the soft copy should be discovered, and the properties of the document examined. Mr Truong said he was not aware if any soft copies of the documents exist. I pointed out the Motor Vehicle Agreement includes details of Mr Seoud’s address and VIN details etc., and therefore somebody with some intimate knowledge of the parties had to have prepared the documents.

[130] Mr Truong was asked how does he normally send documents to Mr Swords to have executed? He answered that he typically emails documents to Mr Swords. He has no explanation as to why there is no email trail with these two documents.

[131] In re-examination he said there is one paralegal employed and there was an earlier paralegal. He was asked if Ms Jackie Davey does any work for Mr Buckley? He replied yes, she is an Executive Assistant to Mr Buckley and has a background in accounting. She also has knowledge of who lives in the properties. He said that none of the paralegals prepare legal agreements, but if they did, they would show him or Mr Chong the draft documents.

[132] Following the hearing Mr Truong provided an affidavit sworn on 22 May 2020. Relevant to concerns I raised during the first day of hearing, Mr Truong’s evidence is:

• Ultra Tune Australia Pty Ltd did not withhold tax on payments made to Mr Seoud for the period prior to his commencement with the Respondent;

• The Respondent did not lodge FBT on the benefits provided by the Respondent to Mr Seoud relevant to the provision of the motor vehicle and the accommodation;

• For the period prior to his employment with the Respondent, Mr Seoud had agreed with Mr Buckley that he would be a contractor and registered a business name “Seoud Jimmy” with ABN 47 763 707 208 on 1 July 2014;

• The FBT returns for FBT years 18/19 and 19/20 will be undertaken following the publication of the Commission’s decision as to Mr Seoud’s remuneration in the relevant years;

• He scanned the signed Accommodation Agreement and Motor Vehicle Agreement “which were kept as hard copy in the Applicant’s Employment records, into UTA’s Cloud for the purposes of this proceeding on 25 March 2020”.

• He forgot to mention that there had been a paralegal employed whose duties were to assist Mr Chong with preparation of various franchised, leased and other legal documents. The employment of that paralegal ended on 23 August 2018.

Evidence of Dennis Annable

[133] Mr Annable made a witness statement to which the Respondent filed in this matter. At the jurisdiction hearing, it was mutually decided that Mr Annable would not be called to appear and give evidence. Mr Annable is employed by Ray White Surfers Paradise and stated that he has over 24 years of experience in the real estate industry.

[134] Mr Annable was requested by Mr Truong of the Respondent to provide a rental appraisal on the Manta Crown Towers apartment. He inspected the apartment and noted that ‘high quality’ renovations had been completed in the apartment.³³ Even taking into consideration the current market conditions, he is confident that the apartment certainly achieves a rental of $725 to $755 per week. He stated that this estimate is based on rent achieved for similar large, renovated, high floor apartments in the building and comparable buildings such as, Sun City and Chevron Renaissance.³⁴

Evidence of Kevin Toghai

[135] Following the hearing the Respondent filed an affidavit of Mr Kevin Toghai sworn on 22 May 2020. Mr Toghai has been employed by Ultra Group as the Head of Technology since November 2019. Since he commenced Mr Toghai has raised concerns with Mr Buckley about Ultra Group’s current IT structure, including its inability to keep pace with the Ultra Group’s needs, lack of centralisation of data and loss of data.

[136] He stated that he has been in the process of capturing all the data to a Cloud server, but this is a time-consuming task. Mr Toghai has directed all employees of the Ultra Group to store all data files on the Cloud without exception.

[137] On 21 May 2020, Mr Truong instructed Mr Toghai to search for all correspondence and documents pertaining to the following agreements:

• Accommodation Agreement dated 1 August 2018;

• Motor Vehicle Agreement dated 5 May 2019;

• Employment Agreement dated 5 July 2018; and

• Incentive Agreement dated 5 September 2018.

[138] On 21 May 2020 and 22 May 2020, he conducted a search in Mr Buckley’s email and laptop files, and in data stored in the Cloud. Mr Toghai’s affidavit set out details of the search methods and paths used. Mr Toghai stated that the results of his searches were that:

• He could not find in Mr Buckley’s emails or his laptop any correspondence or documents pertaining the four Agreements mentioned in the above paragraph; and

• He found copies of the four agreements stored in different locations on the Cloud server, but nothing on the system indicates anything about the origin of such hardcopy documents.

Evidence of Alan Brown

[139] Following the hearing the Respondent filed an affidavit of Mr Alan Brown sworn on 22 May 2020. Mr Brown has been employed as IT Support by Ultra Tune since 18 November 2003 and reports to Mr Toghai.

[140] Mr Brown stated that on 21 May 2020 he was instructed by Mr Truong to conduct searches for correspondences and documents pertaining to the agreements set out in Mr Toghai’s evidence above at [137].

[141] Mr Brown’s first search was on a backup of emails on Mr Buckley’s old laptop he used for three years prior to April 2020, which did not return any results. The second search was on Mr Buckley’s old laptop and new laptop, which did not return any results. Mr Brown’s third search was using a Microsoft eDiscovery platform which allowed him to search documents in the email addresses of Mr Buckley, Ms Davey, Mr Seoud, Mr Tony Cott and Mr Cedaro using certain keywords. The third search uncovered:

• One email pertaining to a draft employment contract in 2017;

• Eight emails between Mr Seoud and Mr Chong pertaining to a proposed employment contract in December 2019; and

• One email from Mr Cedaro dated 27 December 2019 to Mr Buckley concerning the termination of employment of Mr Seoud.

Submissions of the Respondent

Whether application lodged more than 21 days after dismissal took effect

[142] The Respondent noted that the Form F2 – Application for unfair dismissal remedy was filed by Mr Seoud on 13 January 2020. The Respondent submitted that although the Form F2 – Application states that Mr Seoud was represented by a lawyer, in cross-examination Mr Seoud admitted that he had prepared the Form F2 – Application, and that he had electronically lodged the application with the Commission.³⁵

[143] The Respondent submitted that Mr Seoud’s oral evidence establishes the following chronology of events:

17 November 2019	In the early hours of the morning, Mr Seoud was assaulted both inside and outside of NRA’s premises by members of a gang.
Between 17 November 2019 and 20 November 2019	Mr Seoud and Mr Buckley meet with QPS including members of the Maximum Taskforce to discuss the events of 17 November 2019. Mr Seoud was advised by the Taskforce to leave the State because of his life- threatening situation.
20 November 2019	Mr Seoud travelled to Brisbane and did not return to the Gold Coast.
4 December 2019	Mr Seoud travelled to Bali.
15 December 2019	Mr Seoud returned from Bali after being “bashed” in Bali.
Prior to 16 December 2019	Mr Seoud was informed by Mr Buckley that he was required to move out of the Crown Towers apartment.
16 December 2019	• Mr Seoud discovered that his NRA credit card had been cancelled. • Mr Seoud was contacted by Mr Swords who offered to assist him to move out of the Crown Towers apartment, to which Mr Seoud declined the offer and said in a text: “I have already started the process in moving my staff out as I told Sean it will be done” and also “2nd week of January as I told Sean”. In the first text he also said to Mr Swords: “as for the car Sean knows it has been transported to Melbourne”. • Mr Seoud sent a text to Mr Buckley stating that he felt that he had been pushed out very quickly and requested that he be able to peacefully move his belongings out of the Mantra Crown Towers apartment after Christmas. • Mr Buckley said to Mr Seoud that he needed to get out of the Gold Coast. A contract of employment with Ultra Tune in Melbourne was being drafted, and that Mr Seoud needed to let him know whether he would be accepting an offer of employment at Ultra Tune in Melbourne. Mr Seoud said that he would not be going to Melbourne at that stage as it was not safe for him, and that he had to get his name out of the Club, and that he and Mr Buckley needed to work things out directly and not via third parties.
18 December 2019	• Mr Seoud’s brother, who had received a copy of the draft Employment Contract with Ultra Tune, gave the copy to Mr Seoud. • Mr Seoud received his last pay on 18 December 2019 but was only for half the amount had he been still employed. • Mr Seoud’s access to his NRA email account had been cancelled.
27 December 2019	Mr Seoud acknowledged receiving Mr Hone’s email with an attached letter from Mr Hone, which states, inter- alia: • “We are writing to you to clarify some points regarding your lack of understanding as to the reason(s) your role at the Toybox Gentleman’s Club was ultimately terminated and you were removed from the board of directors on December 17, 2019 whilst you were holidaying in Bali.” • “We are instructed that you were informed of, and welcomed, the decision of the board, stating you no longer wished to work at the Toybox and wished to relocate back to Melbourne in order to facilitate this relocation to Melbourne, Mr Buckley offered you a role at (Ultra Tune Australia Pty Ltd), on a comparable salary with a motor vehicle, working out of the Melbourne office under the direction of Mr Tony Cott and Mr Rod Cedaro on December 19, 2019 which you subsequently rejected”.

[144] The Respondent submitted that in summary:³⁶

• Mr Seoud’s wages had stopped;

• Mr Seoud’s NRA credit card had been cancelled;

• Mr Seoud had been locked out of his NRA email account;

• Mr Seoud was required to move out of his NRA-supplied accommodation and return the company car; and

• As a consequence of Mr Seoud’s employment with NRA being terminated, he was being offered alternative employment in Melbourne with another corporate entity controlled by Mr Buckley. A draft contract of employment with Ultra Tune had been given to him.

[145] The Respondent submitted that the events described above at [143] – [144] demonstrate that Mr Seoud knew by 16 December 2019, or at the very latest by 18 December 2019 that he was no longer employed by the Respondent and that his services had been terminated. It was submitted that Mr Hone’s letter of 27 December 2019 was not notification of termination of Mr Seoud’s employment, but on its face clear clarification of the reasons for the termination of Mr Seoud’s termination with the Respondent and removal of directorship.

[146] The Respondent submitted that having regard to the matters set out above Mr Seoud’s application was not made within the period required in s.394(2) of the Act.

High income threshold

[147] The Respondent submitted that Mr Seoud is not a person protected from unfair dismissal, as he does not meet the enabling criteria set out in s.382(b) of the Act. In particular, Mr Seoud does not meet the criteria set out in s.382(b)(iii) of the Act as the sum of his annual rate of earnings, inclusive of other amounts of non-monetary benefits worked out in accordance with the regulations, exceeds the high income threshold.

[148] The Respondent noted that Mr Seoud’s evidence is that he did not sign the Accommodation Agreement nor the Motor Vehicle Agreement. It is unclear to the Respondent whether in this context Mr Seoud submits that as neither the accommodation nor provision of a vehicle were referred to in his Employment Agreement, that these benefits should be excluded from calculation of his annual earnings. At one point the Respondent understood Mr Seoud to be submitting that the accommodation was a benefit of $50 per week, but it is not clear whether this was put forward as a primary submission or as an alternative submission.

[149] The Respondent submitted that the existence or otherwise of the written Accommodation Agreement and the written Motor Vehicle Agreement in many respects add an unnecessary layer to this case and are otiose to the final outcome. Putting aside both the written Accommodation Agreement and the written Motor Vehicle Agreement, the Respondent submits that for the purposes of assessing whether the high income threshold applies to Mr Seoud at the time of dismissal the Commission should:³⁷

• consider the accommodation and motor vehicle benefits provided to Mr Seoud for the purpose of determining whether the high income threshold applied to him at the time of the cessation of his employment; and

• estimate a real or notional money value of these benefits being the amount for ss.382(b)(iii) of the Act.

[150] The Respondent referred to the decision of Deputy President Sams in Paul Dart v Trade Coast Investments Pty Ltd³⁸(‘Dart’), in which the respondent in that case had raised a jurisdictional objection that the the high income threshold had been met by reason of the applicant’s private use of a company supplied car, iPad and mobile phone. The Deputy President stated:

“[89] The tenor of the applicant’s case was that if he had not expressly agreed to being given a benefit, or it was not part of his initial Letter of Employment or it was provided after he commenced employment, that this somehow negated or reduced the value of the benefit for the purposes of the annual rate of earnings test. In addition, the applicant described the private use of the motor vehicle and mobile phone as ‘incidental’ to his primary function as being ‘on call’ 24/7.”

[151] The Respondent also referred the Commission to the decision of the Full Bench in Sam Technology Engineers Pty Ltd v Mr Andrew Bernadou³⁹ (‘Sam Technology’) at paragraph [67] which says:

“…..it has long been held, for the purpose of determining whether an employee is above the high income threshold for protection against unfair dismissal, that the focus is on the private benefit derived by an employee from the provision of a fully maintained motor vehicle. The provision of the vehicle for business purposes is not included in determining whether the employee has exceeded the high income threshold. A Full Bench of the Australian Industrial Relations Commission in Rofin Australia Pty Ltd v Newton endorsed the following approach taken by Senior Deputy President Watson in determining whether any part of the provision of a fully maintained motor vehicle to an employee should be included as part of the employee’s remuneration …..”

[152] The Respondent submitted that Mr Seoud’s actual earnings in the 2019-2020 financial year are for a period of less than the full financial year. For the purposes of determining whether the high income threshold is met it is appropriate to annualise earnings in the financial year in which the termination has taken place. On this point, the Respondent referred the Commission to the decision of Commission Bissett in Lisa Slavin v Horizon Holdings Pty Ltd⁴⁰ (‘Slavin’) at paragraph [14] which says:

“…..it does not make sense to suggest that earnings should be determined with respect to actual earnings in the financial year in which the termination took place. To not annualise the wages or other benefits of the Applicant would provide an unfair advantage to employees dismissed early in the financial year and disadvantage those dismissed in June of any year. Further, it seems to me that it would not be logical to determine an Applicant’s annual rate of earnings by reference to any period except that period preceding the termination of her employment. Section 382 of the Act is directed at protection from unfair dismissal if, at that time, (that is the time of the dismissal) the sum of the person’s annual rate of earnings and such other amounts as prescribed by the regulations is less than the high income threshold. Consideration of annual rate of earnings in the most recently completed financial year would not allow for the determination of an annual rate of earnings at the time of the dismissal.”

[282] Having concluded that the application has been made five to seven days beyond the 21-day time limit, it is necessary to consider whether to grant an extension of time to Mr Seoud to file his application.

Applicable Case Law

[283] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd⁹¹where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

[284] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,⁹² a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers⁹³ stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:⁹⁴

“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” [original emphasis]

Consideration on extension of time issues

Section 394(3)(a) - The reason for the delay

[285] During the hearing Mr Seoud asserted that he considered he first learned of the dismissal on 27 December 2019. He stated that he was aware of the 21-day time limit in which to bring an application. Essentially, Mr Seoud does not consider that his application has been made out of time.

[286] I do not consider this marries with his conduct between 16 December 2019 and 27 December 2019 where:

(a) it appears he had full knowledge he could no longer live in the apartment;

(b) he had knowledge the company credit card had been cut up and was not available for his use;

(d) he wasn’t attending for work;

(e) he had been offered a role in Melbourne and stated that he wasn’t ready to go to Melbourne;

(f) he was transporting the vehicle to Melbourne but not to Mr Buckley; and

(g) he was liaising with Mr Buckley’s current and former partners when it would be unnecessary to do so.

[287] Mr Seoud did not offer up any suitable explanation for the reason for the delay other than to assert that he considered he was first notified of the dismissal on 27 December 2019, despite the application that he prepared himself nominating 18 December 2019 as the effective date of dismissal. It was submitted on his behalf that due to the period of the year it would have been difficult to obtain legal advice, however Mr Seoud ended up completing the application himself. He did not lead any evidence that he sought legal advice or was unable to obtain legal advice.

[288] In line with the authority in Nulty, I am not satisfied that Mr Seoud has demonstrated exceptional circumstances for the period of the delay. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[289] I understand Mr Seoud’s submission that he first became aware of the dismissal on 27 December 2019. As stated above, it is a submission which I do not accept. For Mr Seoud’s application to have been made within the 21-day time limit, he would have had to have been dismissed no earlier than 23 December 2019. On the evidence before me, I do not accept that Mr Seoud considered the employment on foot as at 23 December 2019.

[290] Mr Buckley had informed him he needed to leave the Gold Coast on 16 December 2019, and he had a job for him within Ultra Tune in Melbourne in the new year. I consider that Mr Seoud understood his position with the Respondent had ended; he wasn’t returning to the Club. This weighs against the exercise of the discretion to grant an extension of time.

Section 394(3)(c)- Any action taken by the person to dispute the dismissal

[291] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.⁹⁵

[292] Mr Seoud did a number of things as alleged by Ultra Tune in the letter dated 27 December 2019. It is not necessary for the Commission to make findings as to whether there was attempted extortion.

[293] Mr Seoud has not provided any evidence to the Commission that he was making requests of Mr Buckley to resume his duties with the Respondent. His language was in agreement that he needed to exit the Club’s business, but it was a matter of timing. He didn’t wish to be rushed out of the accommodation but had resigned himself to it occurring.

[294] Mr Seoud stated that he had sent an email to Ultra Tune asking why he received a half pay on 18 December 2019, but he has not produced the email purportedly sent.

[295] Mr Seoud’s inaction to dispute the dismissal weighs against the exercise of the discretion to grant an extension of time.

Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[296] The delay of five to seven days will not cause any prejudice to the employer. This is a neutral factor when considering whether to exercise the discretion to grant an extension.

Section 394(3)(e) – The merits of the application

[297] In the matter of Kornicki v Telstra-Network Technology Group⁹⁶ the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:⁹⁷

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[298] The reason for the dismissal, it seems, was the concern Mr Buckley held for Mr Seoud’s safety. It would be impossible for the Commission to ascertain the factual reasons why Mr Seoud was assaulted whilst at work at the Club, or while in Bali. Mr Seoud had already discovered that he was not eligible to bring a claim of workers compensation on account of the fact that he was a director when assaulted, and pursuant to Queensland legislation, ineligible to successfully bring a claim.

[299] On his own admissions, Mr Seoud’s future at the Club did not look bright. He informed Mr Buckley there would need to be an exit strategy. Mr Buckley replied that a contract was being prepared [with Ultra Tune in Melbourne].

[300] The letter of 27 December 2019 detailed alleged breaches Mr Seoud engaged in during the employment, yet it clearly did not form part of the reasons for the dismissal on 16-18 December 2019. This is demonstrably clear because Mr Seoud was offered employment with Ultra Tune on 19 December 2019. The allegations in the letter of 27 December 2019 only arose after 19 December 2019.

[301] I consider that the application has only the slightest merit opportunity. It is not a strong case but cannot be said to be completely hopeless. I consider merit to be a neutral factor when considering the discretion to grant an extension.

Section 394(3)(f) – Fairness as between the person and other person in a similar position

[302] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:⁹⁸

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[303] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.⁹⁹ Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[304] I am not satisfied that the issue of fairness as between Mr Seoud and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion on extension of time considerations

[305] Having considered all of the matters to which my attention is directed by the Act, I am
not satisfied there are exceptional circumstances which would warrant granting an exception
to the statutory time limit.

[306] Mr Seoud’s circumstances are not out of the ordinary course, unusual, special or uncommon.

[307] As Mr Seoud has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.

[308] I order that the application be dismissed.

[309] However, given the other jurisdictional issue before the Commission, I consider it would be inappropriate not to provide my consideration of those issues, given they are important issues, and in the event the out of time finding is determined to be incorrect.

Consideration of accommodation provided to Mr Seoud

[310] Mr Seoud has, for many years, enjoyed the benefit of accommodation provided to him at no cost. Whilst in Melbourne it was provided at the election of Mr Buckley while Mr Seoud was his friend, and later when Mr Seoud “contracted” to Ultra Tune for the provision of services described by Mr Buckley as driving Mr Buckley to and from court, doing whatever Mr Buckley required him to do, and being Mr Buckley’s companion.

[311] Mr Buckley describes the provision of benefits to employees and associates as being provided by him, regardless of which corporate entity owns the property or makes payments to individuals. Curiously, Mr Buckley considers that he can do what he wishes with his various corporate entities because he is the sole shareholder. He appears to me to have had little regard to some of the requirements under the Corporations Act 2001 involving directors’ responsibilities, various taxation laws, spectacularly with regard to fringe benefits tax, and superannuation legislation.

[312] When Mr Seoud was providing so-called consultancy services to Ultra Tune in Melbourne, he was paid tax-free payments without the provision of an invoice. Ms Robyn Bull simply paid Mr Seoud whatever amount Mr Buckley directed her to pay to him. As I understand it, no provision of superannuation was paid to Mr Seoud on account of his services. As a sole trader, it appears to me he may be entitled to superannuation on account of the services provided by him being predominantly for labour. Mr Seoud stated that he declared the payments made to him to the taxation office. Presumably he declared that he was running a business.

[313] On arrival in Queensland, Mr Seoud continued to do work for Mr Buckley (through his various entities) and oversaw building works. He lived rent-free in the accommodation in Surfers Paradise, while still occupying the apartment in Melbourne. He continued to live in the Surfers Paradise accommodation rent-free when he commenced employment with the Respondent. It wasn’t a new thing; it was a continuation of the arrangement.

The Accommodation Agreement

[314] This purported document has an extraordinarily curious existence. The evidence of some of the Respondent’s witnesses relevant to this document stink like a three-day old rotted fish head. In no uncertain terms, I consider false evidence was provided to the Commission by some witnesses and the Accommodation Agreement was fabricated. Here are my reasons:

(a) Mr Swords

(i) I accept that Mr Swords did travel to Brisbane on 18 August 2018 and travel to the Gold Coast. I do not consider it was for the reason stated by him for doing so;

(ii) I do not accept his evidence that he had with him an original of the Accommodation Agreement and either met with Mr Seoud at the Club or at Mr Seoud’s accommodation and Mr Seoud executed the agreement with Mr Swords witnessing his signature;

(iii) Mr Swords’ written evidence was that he met with Mr Seoud at the Club to execute the agreement but could not photocopy it as there was an issue with the photocopier. This evidence changed during the hearing where Mr Swords stated that he met with Mr Seoud at the apartment where Mr Seoud was in his underwear, sweating profusely, coming down from a suspected drug bender;

(iv) Mr Swords stated that Mr Seoud had a home office but could not photocopy the executed agreement because of an issue with the photocopier. Mr Swords stated he wished to leave the apartment as soon as possible. He then said offered to go the Club or to Officeworks to have a photocopy made;

(v) I put to Mr Swords if he had, in fact, witnessed Mr Seoud’s signature of the executed contract, why wouldn’t he take a photo of it on his phone? He could not provide a suitable explanation, yet Mr Swords has been quick to use the camera on his phone on other occasions relevant to Mr Seoud, including taking photos of his brother in the apartment lobby;

(vi) Mr Swords presumed that Mr Seoud sent by post the executed Accommodation Agreement, yet no original could be found by the Respondent in its corporate head office;

(vii) I do not accept Mr Seoud’s evidence that he viewed the Accommodation Agreement in Mr Seoud’s personal documents when assisting to remove Mr Seoud’s belongings from the Club;

(viii) No emails relevant to Mr Seoud purportedly sending an executed agreement could be found by the Respondent. Conveniently no electronic record of Mr Swords purportedly receiving the agreement for execution can be found on account of him having picked it up from an out tray in the office;

(ix) Most disturbingly, Mr Seoud’s signature appears to me to have been copied onto the Accommodation Agreement, as it is not in his usual place of signing. I therefore conclude that Mr Swords could not have witnessed Mr Seoud signing the Accommodation Agreement as is his evidence.

(b) Mr Truong

(i) Mr Truong presented as a witness with very little credibility;

(ii) He stated that he did not prepare the Accommodation Agreement. He had spoken with Mr Chong who declared he had not prepared the Accommodation Agreement;

(iii) Mr Truong was unable to say how the Accommodation Agreement varies the employment agreement between Mr Seoud and the Respondent. Mr Curtis pointed out to Mr Truong that the Accommodation Agreement was so poorly worded it is vague and unintelligible. Mr Truong was not able to assist with how it varied Mr Seoud’s employment agreement;

(iv) Mr Truong stated that if he needed Mr Swords to have a person execute an agreement, he would typically email Mr Swords the agreement. He has no explanation as to why this did not occur with the Accommodation Agreement;

(v) Mr Truong stated that the accounts department had a copy of the executed agreement, but it was not available in electronic means. He stated that he does not how it was delivered to the Ultra Tune head office.

[315] It is my view that both Mr Swords and Mr Truong gave false and misleading evidence to the Commission. If I am correct in my view, this is particularly disappointing in Mr Truong’s case as he is an in-house solicitor for Ultra Tune.

[316] I accept Mr Seoud’s evidence that he had not sighted the Accommodation Agreement until it was produced by the Respondent in these proceedings. I accept that it is not his signature on the purported agreement, and his usual signature has been copied by a person onto the Agreement. The Respondent was unable to produce a soft copy of the Accommodation Agreement to help discover when it was first created; I consider this to be true because I am of the view that it was created recently for the purposes of these proceedings.

[317] In any event it is an extraordinarily poorly worded document and makes no sense at all. For example, “Accommodation” is a defined term and then never used within the agreement.

[318] Having determined that Mr Seoud did not enter into this purported agreement because it was never put to him for his signature, it is still true that Mr Seoud enjoyed living rent-free in the apartment during his employment with the Respondent. It is necessary to determine, having regard to Regulation 3.05(6)(a) if Mr Seoud is entitled to receive, or has received, a benefit in accordance with an agreement between Mr Seoud and the Respondent.

[319] I say the Respondent, as the Regulation describes the other party as “the person’s employer”, was Mr Seoud’s employer. Not Mr Buckley, not Ultra Tune, but the Respondent.

[320] Much argument was put by the parties as to the apartment being owned by Clarson Properties Pty Ltd and not the Respondent, and whether this constitutes the benefit being provided by the Respondent. I have given a great deal of thought to this issue.

[321] Despite my findings that there is no signed agreement between Mr Seoud and the Respondent relevant to the provision of the accommodation, I consider that Mr Seoud received a benefit in accordance with an agreement between himself and the Respondent. While the Respondent does not own the accommodation, I do not find that the Regulation contemplates “the person’s employer” as requiring ownership for the benefit to be agreed. I consider it to be a simpler exercise; did the Respondent and Mr Seoud agree for Mr Seoud to enjoy the benefit of the rent-free accommodation which constitutes the benefit? I consider this must be answered in the positive. I still consider this to be true even when the benefit was provided prior to the employment having commenced.

[322] Having satisfied myself that Regulation 3.05(6)(a) has been met, I am satisfied pursuant to Regulation 3.05(6)(b) that the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of s.332(3) of the Act.

[323] The next considerations are discretionary. I do consider it appropriate, having regard to the circumstances that the Commission should consider the benefit of the rent-free accommodation in assessing whether Mr Seoud’s earnings exceed the high income threshold at the time of the dismissal. I note that a reasonable money value of the benefit has not been agreed by Mr Seoud and the Respondent, and I determine that I can estimate a notional money value of the benefit.

[324] In particular, I note that Mr Seoud in his application to the Commission stated:

“My accommodation was included as part of my employment contract”.

[325] I do not accept Mr Seoud’s evidence that dancers were often accommodated at the apartment as part of the Respondent’s arrangements. Mr Seoud could not point to any evidence where this was a requirement, or that he was directed to make available the second bedroom for the dancers. On the evidence before me, I determine that Mr Seoud enjoyed sole occupancy of the apartment, and if dancers, on occasion, slept there it was by his invitation.

[326] I reject Mr Seoud’s submission that if the Commission were to attribute a notional money value it would be at $50 per week. I accept Mr Annable’s evidence that the rent achievable for the apartment is at a minimum $725 per week. Mr Seoud enjoyed the benefit of the accommodation for the whole of the year prior to his dismissal, and therefore I estimate the notional money value of the accommodation at $37,700.

[327] I conclude that Mr Seoud’s earnings including wages of $119,600 and the benefit of the accommodation being $37,700 total $157,300, in excess of the high income threshold of $148,700. Without requiring an examination of the provision of the vehicle, I would dismiss the application.

Provision of the vehicle

[328] I have concluded that the benefit of the accommodation to Mr Seoud was $37,700, noting this would take Mr Seoud’s earnings in excess of the high income threshold. If I am incorrect about that, I consider it necessary to determine the benefit to Mr Seoud of the provision of the vehicle.

[329] The vehicle driven by Mr Seoud was an expensive one. There are no like vehicles available for examination in the RACQ data, although the Respondent did point to high-end vehicles to provide some sort of comparison. I accept the Respondent’s calculations relevant to a 50% depreciation over a 5 year period.

[330] While Mr Seoud suggested that a kilometre rate of $2.00 was on the aggressive side, I disagree. The vehicle driven is a prestige vehicle. While I do not accept the Respondent’s calculations at $2.71 per kilometre, I would find, if it were necessary to do so, the per kilometre rate should be $2.50.

[331] The vehicle was driven approximately 11,085 kilometres in the time Mr Seoud had use of the vehicle, which was less than one year. In his calculations, Mr Seoud included driving from the apartment to work and return as business kilometres. They are not business kilometres; they are private kilometres. As pointed out to Mr Seoud during the hearing, an employee is typically required, at their cost to attend work and return. Whether Mr Seoud worked from the Club during the day and returned at night when the Club opened, it is still a personal expense.

[332] After careful consideration I find only the following activities constituted business-related kilometres, and I accept the Respondent’s submissions that it should count only for 31.85 weeks which I have rounded to 32 weeks:

(a) Shopping – purchase drinks and alcohol from supermarket, 1 trip per week, 10km per trip, (32 weeks) = 320km;

(b) Banking – 1 trip per week, 6km per trip, (32 weeks) = 192km;

(d) Hospitality purchases – 2 trips per month, 6km per trip, 8 months = 96km;

(e) Purchase of lemons and limes – 1 trip per week, 16km per trip, (32 weeks) = 512km;

(f) Bunnings – 2 trips per month, 10km per trip, 8 months = 160km;

(g) Picking up clients from various addresses – 1 trip per week, 20km per trip, (32 weeks) = 640km;

(h) Pick-up dancers from airport – 3 trips x 54km = 162km;

(i) Return dancers to airport – 200km;

(j) Boxing events including with dancers/promotional models – 400km;

(k) Driving Mr Buckley’s children – 1463km; and

(l) Mr Torrington’s use of the vehicle; 500km.

[333] Where I have not agreed with Mr Seoud’s evidence on some of the above items it is because I do not accept that there was business-related work associated with the kilometres travelled. In other calculations I have, on the balance of probabilities determined an appropriate number of kilometres for each item. For example, at [332](g) I do not accept that the vehicle was used to pick paying clients up at 40km per trip. I accept that Mr Seoud did use the vehicle for occasional additional pick-ups and would put the kilometres travelled each week as no greater than 20km.

[334] I have reduced the claimed travel of returning dancers to the airport to no more than 200km. I have reduced the boxing events to no more than 400km on account of there being no more than three boxing events during the relevant period.

[335] I calculate the business kilometres travelled by Mr Seoud in the approximate 9 month calendar period for which he used the vehicle to be 4,837 kilometres. I accept Mr Seoud’s evidence that when he received the vehicle there was 150km on the odometer. Accordingly, the private usage of the vehicle is as follows:

11,085 minus 150 minus 4,837 = 6,098km

[336] As a percentage of 11,085km, this equals 55%.

[337] Given the vehicle was used for only 9 calendar months of the year, and not 12, it is first necessary to determine the annual kilometres if it had been used for all of the 12 months. I have conveniently multiplied the 11,085 kilometres by 1/3 to come to a total of 14,780 annual kilometres. The private usage of the vehicle was 55%. Annually that would be 8,129km.

[338] I have determined the per kilometre rate to be $2.50. Multiplying $2.50 by 8,129km = $20,322.50. This is the value of the private usage of the vehicle and is necessary to be added to Mr Seoud’s annual earnings.

[339] If it were necessary to consider only Mr Seoud’s annual salary of $119,600 and the benefit of the vehicle of $20,322.50, I would determine that his earnings equal $139,922.50 and therefore fall under the high income threshold.

[340] Relevant to the Motor Vehicle Agreement’s existence, I make the same findings per the Accommodation Agreement. I consider that the Motor Vehicle Agreement is a recently created document for the purposes of these proceedings, and I accept Mr Seoud’s evidence that he did not sign it. I reject Mr Swords’ evidence on this issue and have serious doubts as to the Respondent’s conduct in the production of this false document.

Conclusion

[341] I have determined that Mr Seoud’s application has been made out of time and for the above reasons I have declined to grant an extension of time. The application is dismissed.

[342] I have considered it necessary to consider the alternative jurisdictional objection relevant to Mr Seoud’s annual earnings. I have determined that the accommodation provided to him is a benefit pursuant to Regulation 3.05(6) and that I should exercise my discretion to include an amount of $37,700 to Mr Seoud’s wages of $119,600. Mr Seoud’s earnings are $157,300 and exceed the high income threshold. I would dismiss his application.

[343] I have determined the kilometres travelled by Mr Seoud during his employment and find that the private usage of the vehicle provided to him constituted 55% of the kilometres driven by him. Having relied on relevant authorities I have determined that an amount of $20,322.50 constitutes earnings for the provision of the vehicle. When added to the accommodation, this brings Mr Seoud’s earnings to $177,622.50. I would dismiss his application. If I am incorrect about the value of the accommodation, Mr Seoud’s earnings would be $139,922.50 and fall under the high income threshold.

[344] My comments relevant to the Respondent’s witnesses, particularly Mr Truong and Mr Swords bear no reflection on the integrity of Mr Watts or Mr Hone. The conduct of Mr Watts and Mr Hone in their representation of the Respondent in these proceedings are without criticism and they responsibly dealt with the material they had before them.

COMMISSIONER

Appearances:

D Curtis, Solicitor for the Applicant.

L Watts, Counsel for the Respondent, instructed by I Hone, Solicitor, and T Troung, Solicitor.

Hearing details:

6 May 2020, Brisbane (by Telephone).
19 May 2020, Brisbane (by Telephone).

Final written submissions:

Final written submissions of the Applicant, 1 June 2020.
Final written submissions of the Respondent, 1 June 2020.

Final written submissions of the Applicant in Reply, 5 June 2020.
Final written submissions of the Respondent in Reply, 5 June 2020.

Printed by authority of the Commonwealth Government Printer

1 ASIC Current Company Extract, Clarson Properties Pty Ltd ACN 161 591 680, 19 May 2020.

2 ASIC Current Company Extract, Clarson Holdings Pty. Ltd. ACN 085 809 123, 19 May 2020.

3 Witness Statement of Mr Peter Sean Buckley, 17 April 2020, Annexure “SB-1”.

4 Ibid, Annexure “SB-2”.

5 Ibid, Paragraph [12].

6 Ibid, Annexure “SB-4” and “SB-5”.

7 Ibid, Annexure “SB-7”.

8 Witness Statement of Mr Peter Sean Buckley, 5 May 2020, Annexure “SB-2”.

9 Witness Statement of Robyn Bull, 5 May 2020, Paragraph [2] and Annexure “RB-2”.

10 Witness Statement of Anthony Swords, 4 May 2020, Paragraph [5].

11 Ibid, Paragraph [6].

12 Ibid, Paragraph [7].

13 Ibid, Annexure “AS-3”.

14 Ibid, Paragraph [14].

15 Ibid, Paragraph [15].

16 Ibid, Paragraph [15].

17 Ibid, Paragraph [16].

18 Ibid, Paragraph [17].

19 Ibid, Paragraph [19].

20 Ibid, Annexure “AS-5”.

21 Ibid, Paragraph [22].

22 Ibid, Annexure “AS-6”.

23 Witness Statement of Tarah Bull, 5 May 2020, Paragraph [5].

24 Witness Statement of Joshua Torrington, 20 April 2020, Paragraph [4].

25 Ibid, Paragraph [5].

26 Ibid, Paragraph [8].

27 Ibid, Paragraph [11] – [12].

28 Witness Statement of Tarra Mann-McLean, 20 April 2020, Paragraph [12].

29 Ibid, Paragraph [13].

30 Ibid, Paragraph [16].

31 Ibid, Paragraph [18].

32 Witness Statement of Tarra Mann-McLean, 5 May 2020, Paragraph [3] and Annexure “TMM-1”.

33 Witness Statement of Dennis Annable, 31 March 2020, Paragraph [4].

34 Ibid, Paragraph [4].

³⁵ Final written submissions of the Respondent, 1 June 2020, Paragraph [4].

36 Ibid, Paragraph [7].

37 Ibid, Paragraph [15].

38 [2015] FWC 4355.

39 [2018] FWCFB 1767.

40 [2012] FWA 2424.

41 Final written submissions of the Respondent, 1 June 2020, Paragraph [22].

42 Ibid, Paragraph [23].

43 Ibid, Paragraph [24].

44 Ibid, Paragraph [25].

45 Applicant’s Form F2, 13 January 2020; Final written submissions of the Respondent, 1 June 2020, Paragraph [25].

46 Final written submissions of the Respondent, 1 June 2020, Paragraph [27].

47 Ibid, Paragraph [28].

48 Ibid, Paragraph [31].

49 [2015] FWC 1816.

50 (1997) 78 IR 78.

51 (1997) 74 IR 283.

52 Dec 519/98 S Print Q0675.

53 Final written submissions of the Respondent, 1 June 2020, Paragraph [40].

54 Ibid, Paragraph [44].

55 Ibid, Paragraph [51].

56 Ibid, Paragraph [53].

57 Ibid, Paragraph [21].

58 Final written submissions of the Respondent in Reply, 5 June 2020, Paragraph [4].

59 [2012] FWAFB 6108.

60 Final written submissions of the Respondent in Reply, 5 June 2020, Paragraph [13].

61 Ibid, Spreadsheet C.

62 Ibid, Paragraph [28].

63 Witness Statement of Jimmy Seoud, 17 April 2020, Paragraph [6].

64 Ibid, Paragraph [8].

65 Ibid, Annexure “JS-4”.

66 Ibid, Paragraph [4].

67 Ibid, Paragraph [5].

68 Ibid, Paragraph [8].

69 Ibid, Paragraph [15].

70 Ibid, Paragraph [20].

⁷¹ Final written submissions of the Applicant in Reply, 5 June 2020, Paragraph [6].

72 Ibid, Paragraph [6].

73 Ibid, Paragraph [7].

74 Final written submissions of the Applicant, 1 June 2020, Paragraph [45].

75 Ibid, Paragraph [50].

76 Ibid, Paragraph [53].

77 Ibid, Paragraph [66].

78 Final written submissions of the Applicant in Reply, 5 June 2020, Paragraph [11].

79 Final written submissions of the Applicant, 1 June 2020, Paragraph [12].

80 Ibid, Paragraph [14].

81 Ibid, Paragraph [20].

82 Ibid, Paragraph [22].

83 Ibid, Paragraph [81].

84 [2016] FWCFB 5500

85 [2001] AIRC 163

86 Ibid at [42].

⁸⁷ Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82]; citing Condon v G James Extrusion Company Print N9963 (AIRC, Watson DP, 4 April 1997), [(1997) 74 IR 283 at p. 288]; cited in Slavin v Horizon Holdings Pty Ltd[2012] FWA 2424 (Bissett C, 23 March 2012) at para. 11.

88 Ibid.

⁸⁹ Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998); cited in Chang v Ntscorp Ltd[2010] FWA 1952 (Hamberger SDP, 9 March 2010); see McIlwraith v Toowong Mitsubishi Pty Ltd[2012] FWA 3614 (Cribb C, 30 April 2012) at para. 34.

90 Ibid.

91 [2011] FWAFB 975.

92 [2018] FWCFB 901.

93 (2010) 197 IR 403 at [16]-[18].

94 [2018] FWCFB 901 at [38].

95 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

96 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

97 Ibid.

98 [2016] FWCFB 6963 at [41].

⁹⁹ See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.

Mr Jimmy Seoud v NRA Enterprises Pty Ltd T/A Toy Box Showgirls

[2020] FWC 5004

17 SEPTEMBER 2020

DECISION

Hearing

Evidence of the Respondent