Mr Samuel Betar v Cricks Sunshine Coast T/A Garry Crick's (Nambour) Pty Ltd
[2019] FWC 6547
•19 SEPTEMBER 2019
| [2019] FWC 6547 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Samuel Betar
v
Cricks Sunshine Coast T/A Garry Crick's (Nambour) Pty Ltd
(U2018/6154)
COMMISSIONER SPENCER | BRISBANE, 19 SEPTEMBER 2019 |
Application for an unfair dismissal remedy.
[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Samuel Betar (the Applicant), alleging that the termination of his employment from Cricks Sunshine Coast T/A Garry Crick's (Nambour) Pty Ltd (the Respondent) was harsh, unjust or unreasonable.
[2] The Respondent is part of a group of motor vehicle dealerships based on the Sunshine Coast. The Applicant was employed as a Trainee Business Manager and, ultimately, a Business Manager, from 24 July 2017 until the termination of his employment on 2 June 2018. The Applicant’s role as Business Manager was to assist customers in obtaining finance on vehicles purchased, as well as insurance.
[3] Early in 2018 a client of the Respondent, Ms Michele Wessling, and with the Applicant’s assistance, applied for finance to purchase a vehicle through the Respondent. The finance amount was for approximately $23,335.00. It is the circumstances of this car sale and associated applications for finance that are at the centre of this application. It is sufficient for present purposes to say that Ms Wessling’s dealings with the Applicant lead to her complaining to the Respondent regarding the Applicant. The Respondent says it investigated Ms Wessling’s complaint an ultimately determined to dismiss the Applicant.
[4] The Applicant was dismissed by letter dated 2 June 2018, which stated:
“I am writing to you about the termination of your employment with [the Respondent].
This meeting was attended by you, Rob Stankiewicz and Myself (sic) and we spoke about a client identifying (sic) you of signing finance documents without her permission, we have since met with the client and they have confirmed that the signatures are not hers.
As discussed in the meeting if we confirmed the above as true with the client your conduct during that incident:
• Was conduct in the course of your employment engaging in fraud, and in the circumstances your continued employment during a notice period would be unreasonable.
We consider that your actions constitute serious misconduct warranting summary dismissal.
We will be holding any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter, until further investigations are made.”
[5] The matter was listed for conference, however was unable to be resolved. Directions were set for the filing of material and the matter was heard at the North Coast Court House and in Brisbane. The Applicant was represented by Mr M D White, of counsel, instructed by Butler McDermott Lawyers. The Respondent was represented by Mr M Healy, of counsel, instructed by Aitken Legal. Permission to appear was granted to both representatives pursuant to s.596(2)(a) of the Act on the basis that the allegations concerning the Applicant’s conduct are serious and the subject of significant factual disputes. These matters meant that the matter was attended with sufficient complexity such that the Commission was satisfied it would enable the matter to be dealt with more efficiently should permission be granted.
[6] It is not in dispute that the Applicant is a person protected from unfair dismissal, has been dismissed, that the Small Business Fair Dismissal Code does not apply and that the dismissal was not a case of genuine redundancy.
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE
[7] As a Business Manager, the Applicant’s role was to assist customers of the Respondent with obtaining finance in order to purchase vehicles from the Respondent. 1 The Applicant recalls having met Ms Wessling and her partner around the 3rd week of March. Ms Wessling had purchased a Mitsubishi ASX for approximately $21,500 with some additional after-market additions. Ms Wessling sought to arrange finance for the total value of her purchase.
[8] After taking the pertinent information from Ms Wessling, Ms Wessling signed a privacy consent form for Nissan Finance. Ms Wessling provided the Applicant with payslips, a medicare card and her licence for identification purposes. The Applicant made an electronic application to Nissan Finance on Ms Wessling’s behalf.
[9] At some point, it is not entirely clear when in the Applicant’s evidence in chief, Nissan Finance responded to Ms Wessling’s application for finance by placing conditions on the application. Those conditions related to Ms Wessling’s capacity to service (ie pay) the loan and information concerning Ms Wessling’s house, which she had represented to the Applicant she owned but which Nissan Finance’s inquries indicated was false.
[10] The Applicant states that he conveyed this information to Ms Wessling “immediately” to Ms Wessling by telephone. This occurred on the day that Nissan Finance advised the Applicant that conditions had been placed on Ms Wessling’s application. 2 The Applicant does not state when this was. In this conversation, the Applicant states that Ms Wessling told him about the arrangement concerning her house, which, by this time, the Applicant already knew because it had been conveyed to him by Nissan Finance. As a result of this phone call, the Applicant asserts that Ms Wessling “was well aware” of the situation concerning his application in respect of Nissan Finance. In this same phone call, the Applicant states that he told Ms Wessling that Nissan Finance required further documentation concerning her partner’s income to evidence the serviceability of the loan.
[11] The Applicant requested specific documents from Ms Wessling that were ultimately emailed to him, but not all at once. The Applicant says he spoke to Ms Wessling “several times” and emailed her on multiple occasions. It took approximately a week and a half for all of the documents to be provided by Ms Wessling.
[12] Ultimately, Ms Wessling attended to collect her new vehicle from the Respondent. At this time it is not in dispute that finance had not been finalised. The Applicant states that when attending the dealership to collect her vehicle, Ms Wessling provided the Applicant with the additional information and a spousal offset form while sitting in his office. As is apparent, this evidence is inconsistent with the Applicant’s earlier evidence that Ms Wessling provided the documents by email, however slowly. In any event, at the time Ms Wessling was collecting the car, the Applicant states as follows:
“I proceeded to go through with Ms Wessling as a matter of the procedures undertaken by Cricks these documents. Specifically, I go through the finance contract which includes, the repayment amount, the term of the contract, the interest rate, Nissan’s terms and conditions, and Nissan’s fees and charges. That documents was then signed by Ms Wessling and was witnessed by myself with my signature.” 3
[13] The Applicant also went through the finance application containing all of the updated information provided by Ms Wessling and the direct debit form stating the repayment amount. Ms Wessling also signed these documents, and those signatures were witnessed by the Applicant. These documents, with the additional information were then sent to Nissan Finance by email.
[14] A few days after this, on which day the Applicant doesn’t specify, he made contact with a person at Nissan Finance. In that conversation, Nissan Finance advised the Applicant that in assessing the Applicant’s amended application for finance, it had discovered that the Applicant’s partner had not disclosed a loan he had with Toyota Finance. This, coupled with Nissan Finance’s previous revelations concerning Ms Wessling previously not be entirely forthright in her application meant that Nissan Finance declined the application.
[15] Following this phone call the Applicant contacted Mr Hearndon and Mr Flannigan. The Applicant advised that Ms Wessling’s finance had been declined. This concersation occurred in Mr Hearndon’s office.
[16] The Applicant made attempts to contact Ms Wessling by telephone, leaving telephone messages for Ms Wessling to contact him. The Applicant also sent emails requesting that she contact him. The Applicant says Ms Wessling did not contact him for several days. When he finally spoke to Ms Wessling, again, the Applicant does not indicate when, he informed her that the application with Nissan Finance had been declined. The Applicants states he told Ms Wessling to leave it with him and he:
“…would contact her once this situation was sorted out with another lender.” 4
[17] The Applicant states that in these circumstances he had been taught to seek approval from another lender. The Applicant then “offered” this loan to Macquarie Leasing and “provided them with the information that was provided to me by Ms Wessling and her partner”. Whether this information was the now corrected information or the previously incorrect information, the Applicant does not say.
[18] The Applicant states that this application was “auto approved” because of the credit score on the application. The Applicant advised Mr Hearndon and Mr Flannigan that finance by Macquarie Leasing had been “auto approved”. The Applicant’s evidence is that “auto approved” does not mean that the loan is fully approved and is still subject to supporting documentation being verified by the lender.
[19] At some point, again, the Applicant does not say when, a credit analyst with Macquarie Leasing requested that Ms Wessling’s partner provide a notice of assessment from the ATO. The Applicant telephone Ms Wessling to say that the “new lender, Macquarie Leasing” was requesting a notice of assessment. Ms Wessling responded that she would be attending the dealership to have after-market items fitted to the vehicle and would provide the requested document at that time.
[20] Ms Wessling ultimately did attend the dealership at a later date and came to the Applicant’s office. At this time, Ms Wessling handed the Applicant a copy of the notice of assessment. The Applicant told Ms Wessling that he needed her to sign some documents, at which time the Applicant produced the Macquarie Leasing documents that included the finance contract, the privacy form, and the direct debit request repayment form. The Applicant indicated where the Applicant should sign and she did in fact sign “all of the above documents in [the Applicant’s] presence” 5.
[21] This procedure was “very rushed” as Ms Wessling was in a hurry to leave the dealership. Ms Wessling did not ask the Applicant what the documents were and he did not have the opportunity to tell her what she was signing other than “general discussion and seeing the documents in any event”. The Applicant did not sign the documents.
[22] The Applicant then sent the notice of assessment to Macquarie Leasing to be verified. Macquarie Leasing responded, the Applicant does not say when, by email stating that the notice of assessment had been verified. The Applicant then sent, the Applicant does not say when, the documents that Ms Wessling had signed to the settlement team at Macquarie Leasing. One or two days later the Applicant received a remittance advice from Macquarie Leasing via email confirming that the finance application had been settled and the vehicle had been paid for by Macquarie Leasing.
[23] The Applicant states that there is no written application to apply for finance with Macquarie Leasing. The information is collected form the applicant to apply for finance. This information is then entered into an electronic form that is connected to the lender’s internal systems. Because of this, The Applicant maintains that he could not have forged Ms Wessling’s signature, essentially because one is not required.
[24] The Applicant maintains that Ms Wessling was “fully aware” that her loan application with Nissan Finance had been declined and that he told her, again, by way of telephone conversation, that he would need to make a further application for finance with a different lender. This phone call was to Ms Wessling’s mobile phone, on or about the 2nd or 3rd of April 2018. 6
[25] The Applicant states that Ms Wessling signed all of the Macquarie Leasing documents – being the application, the finance contract, the privacy statement, the direct debit request form, and the details of settlement – in the Applicant’s office when she attended the dealership after she took delivery of the vehicle to have some aftermarket items fitted to the car. The Applicant maintains that Ms Wessling signed the documents in his presence. 7
[26] The Applicant denies having provided false information to Macquarie Leasing in relation to Ms Wessling’s second application for finance. The Applicant states that all the information he provided to Macquarie Leasing was the information provided by Ms Wessling. The Applicant states that it is “impossible” for him to have provided false or misleading information to a financial institution on a customer’s behalf because the information he provides is provided by the Customer.
[27] The Applicant denies having been dishonest at any point during the process of assisting Ms Wessling obtain finance with either Nissan Finance or Macquarie Leasing. He did not withhold any information in relation to the applications from either Ms Wessling or the Respondent – relevantly being Mr Hearndon or Mr Flannigan. The Applicant maintains that both Mr Hearndon and Mr Flannigan were fully aware of all aspects of Ms Wessling’s applications for finance.
[28] The Applicant disputes that Ms Wessling stipulated that she would be willing to accept finance on terms that repayments be less than $100 a week and for a term of not exceeding 60 months. The Applicant accepts that Ms Wessling did offer to pay additional deposit monies but not for the purpose specified, but rather, to assist in obtaining the vehicle should Ms Wessling not be successful in obtaining finance in relation to the full purchase price of the vehicle.
[29] The Applicant denies that he was told on 29 March 2018 that Nissan Finance had declined Ms Wessling’s application for finance but rather, on this day, the Applicant had been told that the application was “conditioned” and required further information.
[30] The Applicant states that on 30 March 2018 he told Mr Hearndon, in his office, that the application with Nissan Finance had been conditioned. Mr Vinner, was present when this conversation occurred. The Applicant also informed Mr Flannigan, at his desk, that the application had been “conditioned” and not approved. It is Mr Hearndon and Mr Flannigan’s decision to release the vehicle to Ms Wessling despite the finance issue, and despite the Applicant having told them that the application for finance had been “conditioned”. This is not an uncommon practice within the Respondent.
[31] On Tuesday, 29 May 2018, the Applicant was called to a meeting with Rob Stankiewicz, Group Financial and Insurance Manager for Queensland. Mr Dan Hunt, Dealer Principal of Cricks Noosa and Nambour was also in attendance. The Applicant was advised he could have a support person if he wished, although the Applicant did not ultimately have a support person.
[32] The Applicant was advised that Ms Wessling had made a complaint to Mr Hunt, by email. In that complaint Ms Wessling accused the Applicant of forging her signature. The Applicant denied the accusation of forgery. The Applicant states that he was aware that Ms Wessling had already made two monthly payments to Macquarie Leasing. The Applicant was suspended from his employment on full pay, pending an investigation into the matter.
[33] On Saturday, 2 June 2018, the Applicant telephoned Mr Hunt to inquire about the progress of the investigation. Mr Hunt invited the Applicant to a further meeting to occur on Monday, 4 June 2018. At this further meeting, the Applicant says that Mr Hunt told him that the Respondent could not have anyone in their employment that had been accused of fraudulent activities. Consequently, the Applicant was terminated and was handed a letter of termination.
[34] In response to Ms Wessling’s statement, the Applicant states he does not recall Ms Wessling specifying her requirements in relation to finance to him. That is, he does not recall Ms Wessling specifying repayments of up to $100 per week, with a maximum term of 5 years. In this respect the Applicant notes that Ms Wessling ultimately did sign paperwork in relation to the Nissan Finance contract at $120.64 per week.
[35] The Applicant states in his statement in reply that Ms Wessling’s application for finance with Nissan Finance was declined on or about 31 March 2018. Following this he had telephone conversations, text messages and email with Ms Wessling as the deal progressed. Not all of the emails and text messages have been produced by the Respondent, although I note at this juncture, that neither did the Applicant apply for an order for such production.
[36] Once the issue arose, the Applicant says he had a discussion with Ms Wessling, when he does not say, and in that discussion he indicated he would proceed with an application with Macquarie Leasing. The documents in relation to that application were signed by Ms Wessling on 20 April 2018. Ms Wessling signed the documents in front of the Applicant and the Applicant dated the document. Again, the Applicant says not all of the relevant documents have been presented in evidence in this matter by the Respondent, again, I note that no application for production of documents was made by the applicant.
Mitigation
[37] At the time of making his original statement in these proceedings, being 8 August 2018, the Applicant stated that he had been “actively seeking” employment in the motor industry. The Applicant states he had been for interviews but not been able to obtain employment. The Applicant attended an interview with the Dealer Principle of the Noosa Auto Group but was unsuccessful in getting the position.
Closing Submissions
[38] The Applicant submitted that where serious misconduct is alleged, the Commission is concerned with whether the conduct in fact occurred, not with whether the employer had reasonable grounds to believe that it occurred. 8 The Applicant submitted that the conduct upon which the Respondent based its decision to summarily dismiss the Applicant from his employment was a finding that he had engaged in fraud.
[39] The Applicant submitted that there is a lack of independent evidence surrounding the events relating to the allegation of fraud. The Applicant submitted further that Ms Wessling’s evidence was relied on by the Respondent in establishing the allegation, due to the limited scope of enquiry undertaken by the Respondent in relation to the Applicant’s behaviour before making the decision to dismiss the Applicant. 9
[40] The Applicant noted that Ms Wessling conceded in cross-examination that she had not disclosed the complete position in respect of the ownership of her home. The Applicant alleged that this was the ultimate reason for Nissan Finance rejecting her finance application in the first instance. 10
[41] The Applicant also noted that the Respondent alleged dishonest and deceitful discussions with his fellow employees as to the progress of Ms Wessling’s finance application. The Applicant submitted that this is a reflection of the confusion associated with the concept of a loan application being “conditioned”. The Applicant submitted, regarding this point, that Mr Flanigan’s evidence was that he was never advised by the Applicant that Ms Wessling’s finance application had been “conditioned”, “declined” nor even “approved”. 11 However, he had drawn an inference that it had been approved, subject to the documentation being provided.12
[42] The Applicant submitted that the Respondent’s allegation of fraud was founded on an inference. The Applicant expressly denied having forged Ms Wessling’s signature and the Applicant noted that Ms Wessling did not accuse him of having done so. 13 The Applicant noted further that no evidence was placed before the Commission of expert handwriting analysis referred to by Mr Stankiewicz or Mr Hunt as being conducted by Macquarie Leasing.14
[43] The Applicant submitted there was no valid reason for his dismissal as there was not sufficient evidence to establish the misconduct referred to. The Applicant accepted that he was notified of the reason for his termination, but alleged that he was denied procedural fairness by the actions of Mr Hunt. The Applicant submitted that the allegations of fraud were first put to him at the initial suspension meeting on 29 May 2018 with Mr Hunt and Mr Stankiewicz and that this was the only opportunity he was given to respond to them prior to his termination. 15
[44] The Applicant submitted that the Respondent’s organisation was of sufficient capacity to conduct a fulsome inquiry into the allegations, but that this did not occur. 16 The Applicant submitted further that Mr Hunt had conducted a deficient investigation into the Applicant’s alleged conduct by:17
• failing to inquire with Nissan Finance or Macquarie Leasing as to the handwriting analysis, despite representations made to the Applicant that he would do so;
• obtaining Mr Hearnden and Mr Flanigan’s versions of the events but never putting them to the Applicant or seeking a response to them;
• failing to consider imposing any lesser sanction in respect of the Applicant’s employment at any point in his investigation.
[45] The Applicant accepted that the Respondent allowed him to have a support person present at the meeting on 29 May 2018 and that the Respondent did not identify past unsatisfactory performance as a basis for his termination. 18
[46] Finally, the Applicant submitted that the evidence was that Mr Murray and Mr Hunt made a joint decision to terminate the Applicant’s employment. The Applicant submitted that a Jones v Dunkel inference 19 should be drawn against the Respondent in circumstances where there is an unexplained absence of evidence from Mr Murray in these proceedings.20
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
Ms Michele Wessling
[47] Ms Wessling stated that on or about 24 March 2018, she attended the Respondent’s premises to purchase a vehicle. The Applicant was not available to discuss finance options with Ms Wessling on this date, so Ms Wessling attended on 26 March 2018, at which time she met the Applicant for the first time.
[48] At the start of that conversation, Ms Wessling conveyed to the Applicant that she would be comfortable with paying up to $100 per week, with a maximum term of 5 years on the loan, being 60 months. The Applicant opened a program on his computer and showed Ms Wessling what he was working on. Ms Wessling doesn’t specifically recall what the final repayment figure produced by the Applicant was but that they were less than the $100 per week that Ms Wessling had requested. Whatever figure was shown, Ms Wessling accepted that repayment. Ms Wessling did not check all the details of the loan and assumed that the Applicant had calculated repayments on the term proposed by Ms Wessling, being 60 months.
[49] The Applicant printed out some documents and said to Ms Wessling that he would put the application through Nissan Finance. 21 The Applicant printed out a document for Nissan Finance, Ms Wessling had a quick look and “signed one of the documents”22. Ms Wessling thinks this was a privacy statement. Ms Wessling also signed a contract for the purchase of the vehicle. The contact signed by Ms Wessling, and dated 26 March 2018, was attached to her statement.23
[50] It is Ms Wessling’s evidence that this was the only application for finance that she knew about, or authorised, and the only one that she signed. 24
[51] On 27 March 2018, Ms Wessling was contacted by the Applicant requesting further information. Ms Wessling recalls that the Applicant stated to her:
“I need more information. We need to boost your income. I suggest we include your partner’s income on the application. This will simply increase the income, but the loan will still be in your name only.” 25
[52] The Applicant also requested copies of Ms Wessling’s partner’s bank statements, driver’s licence, ABN and financial statements. Attached to Ms Wessling’s statement is an email trail from the 27th of March 2018, with a series of emails between the Applicant and Ms Wessling, concerning the further documents. There are 5 emails back and forth between the Applicant and Ms Wessling, commencing at 1:41pm and ending at 8:25pm.
[53] On 29 March 2018, Ms Wessling received a text message from Malcolm at the Respondent, requesting that Ms Wessling contact him. Ms Wessling gives no evidence about whether she did contact Malcolm.
[54] Ms Wessling received a further text message from Malcolm on 30 March 2018, at 3:33pm, asking what time Ms Wessling would like to attend the Respondent to pick up her new car. Ms Wessling states that she was “surprised” that the loan would have been processed so quickly as she had only just provided the documents to the Applicant a day or two earlier. Ms Wessling replied to Malcolm via text message at 4:02pm stating:
“Hi Mal as far as I know the finance didn’t go through.”
[55] As can be seen from this text message, Ms Wessling was not surprised that the loan had been processed so quickly. Rather, Ms Wessling, for reasons she does not state, was of the understanding that “finance didn’t go through”.
[56] In any event, Malcolm replied to Ms Wessling, at 4:05pm:
“It did, all they need is a copy of your partners (sic) drivers (sic) license (sic), he didn’t have to sign anything. It’s just to say he is sharing some of your bills day to day. Everything else’s fine and it’s right to pick up. The Loan is just in your name.”
[57] Malcolm sent a further text message at 4:06pm stating “[C]ar ready and I will fill the tank for you too”. Ms Wessling responded to Malcolm at 4:08pm:
“well that is a surprise to me. Thanks. Will come down around 9am. Is that my surprise?”
[58] Malcolm responded see you then.
[59] Ms Wessling attended the Respondent the following day, being 31 March 2018, at around 9 or 10am. While there, Ms Wessling saw the Applicant and inquired about the loan. The Applicant responded “[I]t’s all good. Nothing for you to worry about.” On this date, Ms Wessling received and signed Nissan finance documents with the Applicant. Those documents were annexed to Ms Wessling’s statement. That document is signed by Ms Wessling, and that signature is witnessed by the Applicant. That document bears the date 31 March 2018.
[60] Also on 31 March 2018, when Ms Wessling saw Malcolm, Malcolm stated to Ms Wessling:
“The finance funds have not actually been received into our account, which needs to happen before we can release a vehicle. As it is over Easter, we will let you have the car as a loan car pending payment of the funds from Nissan Finance. We anticipate receiving the funds next Tuesday (3 April 2018).”
[61] Ms Wessling then saw Mr Hearndon. Mr Hearndon prepared the Loan Car Agreement. Mr Hearndon took Ms Wessling through the terms of that agreement, which Ms Wessling signed. Ms Wessling was given a copy of the agreement. A copy of that agreement was also annexed to Ms Wessling’s statement. It bears Ms Wessling’s signature, and was signed on behalf of the Respondent by Mr Hearndon. It also bears the date of 31 March 2018.
[62] Ms Wessling also signed the final version of the contract for the purchase of the used vehicle. Ms Wessling “certainly did not sign” another application for finance.
[63] Ms Wessling denies that the Applicant spoke to her on or around 2 or 3 April 2018 relating to a new application for finance and, in particular, the application with Macquarie Leasing. Ms Wessling states that the first she learned of the Nissan Finance application being declined was by way of letter from Nissan Finance. This letter was dated 30 April 2018, and Ms Wessling states she received it on or about 9 May 2018. Similarly, the first Ms Wessling states she heard about the Macquarie Leasing loan was when she received a letter from Subaru Finance confirming finance had been approved on or around 9 May 2018.
[64] On 10 April 2018 at 10:26am, Ms Wessling emailed the Applicant, in which she stated:
“Hi Sam hoping that everything is good with my loan…..could you please send me page 1 of the 15 page document as I dont (sic) seem to have it. Could you please also advice (sic) when payments will start.”
[65] At 10:27am on 10 April 2018, the Applicant replied:
“Everything went through totally fine, I tried to give you a call this morning. Nissan we’re (sic) being fools…
I’ll give you a call later on to discuss?”
[66] The Applicant did not attach page one of the fifteen page document requested by Ms Wessling. Ms Wessling replied at 12:19pm on that day to request the document again.
[67] Ms Wessling states that she took the Applicant’s response on 10 April 2018 above to mean that the Nissan loan was approved.
[68] Ms Wessling returned to the Respondent on 17 April 2018 to have additional items added to the car. While the Respondent worked on Ms Wessling’s car on the 17th, she was provided with a further loan car. The loan car agreement in respect of this loan car was annexed to Ms Wessling’s statement and is dated 17 April 2018.
[69] Ms Wessling accepts that while at the Respondent’s premises on this day, she saw the Applicant. Ms Wessling accepts that the Applicant had been requesting that she provide her partner’s notice of assessment from the ATO and that these requests included an email. That email was attached to Ms Wessling’s statement. It is dated 17 April 2018 at 8:56am, with the subject “Notice of Assessment” and states:
“Hi Michele,
How did you go with this last little thing I need ”
[70] On 17 April 2018, Ms Wessling gave the documents to the Applicant and they have a “very brief” discussion. The discussion did not last more than 5 minutes. Ms Wessling states that on this day she did not sign any documents with the Applicant. The Applicant did not tell Ms Wessling that the application with Nissan had been declined, or that a new finance application was needed. Other than at the time of making her complaint to the Respondent, Ms Wessling did not go back to the Respondent’s premises. Ms Wessling did meet with the Applicant, at the Respondent’s premises or any other location, since 17 April 2018.
[71] On 19 April 2018, Ms Wessling emailed the Applicant again, inquiring about the loan, commencement of loan repayments and the refund of the deposit she had paid. Ms Wessling’s email was sent at 4:37pm and states:
“Hey Sam just wondering whats (sic) happening. Direct debit hasn’t happened as of yet…and $500 hasn’t neen (sic) refunded.
Cheers Michele”
[72] The Applicant responded to Ms Wessling by email on 20 April 2018, at 8:59am as follows:
“It wont (sic) start until next week at this stage, don’t stress that doesn’t affect you at all. I just found out a (sic) accounts lady who does the refunds has left our organisation. I’m just getting this done this morning.”
[73] Ms Wessling states that she is now aware, form discussions with Mr Hunt, that the Applicant’s reference to the accounts lady leaving is not correct.
[74] A week to 10 days prior to 9 May 2018, Ms Wessling received a letter from Nissan Finance. This letter was dated 26 March 2018 and advised that the application for finance made to Nissan Finance had been declined. Ms Wessling states that this was the first time she had heard the application had been refused.
[75] On or about 9 May 2018, Ms Wessling received a letter from Subaru Finance, dated 30 April 2018, confirming that Subaru Finance had approved an application for finance in respect of Ms Wessling. This letter records the repayment amounts at $539.71 a month, with 60 repayments.
[76] Ms Wessling emailed the Applicant on 9 May 2018, at 12:35am as follows:
“I’m not very happy at the moment. I think you have a little bit of explaining to do. Have not heard from you about seeking finance through another company and yet I seem to have a loan through Subaru?
Payments are monthly and higher than I told you I am willing to pay. Have no idea of the terms or conditions of the loan.
Will be contacting Gary Gricks (sic) tomorrow to discuss this “slight” problem.
I have not agreed to this loan.”
[77] The Applicant responded to Ms Wessling at 6:30am on Wednesday, 9 May 2018 as follows:
“Hi Michele,
I’ll call you first thing this morning. Subaru Finance is Macquarie Leasing. I remember discussing with you I couldn’t get the finance through Nissan in the end. Don’t stress thou (sic) we can fix this.”
[78] On 10 May 2018, at 7:41am, Ms Wessling received a further email from the Applicant:
“Hi Michele,
I’ve been trying to get in contact with you, no luck so far. Are you able to give me a call at your earliest convenience.”
[79] Ms Wessling responded at 10:32am, saying:
“Ok Sam, I will ring you after lunch. Here are some of the question (sic) I will need answered
1. Why was I not notified when my loan application ti (sic) Nissan was rejected
2. How are you going to fix this
3. I am now stuck with a loan that I am not comfortable with and have not authorised
4. My requirements for my loan where (sic): repayments under $100 a week and weekly repayments
5. I will require a copy of the loan contract as I have no idea what the interest rate is or any other charges concerned with this loan.
I can tell you now Sam I am not happy, you led me to believe that my loan with Nissan was secure even after me asking you several times what is happening with the loan. I assume you also relayed that information to Gary Gricks (sic) as I am sure they would not have let me take the car otherwise.
Please have this information available when I call you. Thanks”
[80] The Applicant responded to Ms Wessling as 10:43am:
“I’ll have this all fixed by COB today. The deal will be flat cancelled, I’ll amend everything to match what you want and we can move on, if you would like.
I’ll speak to you after lunch.”
[81] Ms Wessling further replied, at 11:39am:
“Not sure how you can fix it…After speaking with my financial adviser, he has advised me to put a hold on any instruction tjat (sic) I give you and has requested a meeting between you me and himself”
[82] Ms Wessling has attached a number of text messages from Friday, 11 May 2019 to her statement. It appears the Applicant attempted to call her at 8:18am on this date and then sent a text message at 8:26am:
“Hi Michele. I was wondering if you could call me today. I’ve fixed everything. But need to know 1 of 2 things. If you’re happy with the new repayment of $80 per week. Or if I need to completely cancel this deal with all monies returned along with the vehicle.”
[83] Ms Wessling replied at 8:29am:
“I need to see the details of the loan. And how you fixed it? Did you just extend the loan terms? Email me the details and I will forward them to my financial adviser. He still wants to meet with you.”
[84] At 9:33am on 11 May 2018, the Applicant emailed Ms Wessling a further finance proposal. Ms Wessling replied at 12:13pm on that day:
“Ok have spoken to Drew and this deal is acceptable. Please continue with the application and advise me of the outcome.
Thank you”
[85] Ms Wessling’s evidence is that the monthly repayments on this loan were for $414.90 per month, over 60 months. This isn’t entirely clear from the documents attached to Ms Wessling’s statement.
[86] On 24 May 2018, $539.71 was deducted from her bank account. Ms Wessling understood this to be consistent with the repayments required by the Macquarie Leasing loan. Ms Wessling emailed the Applicant on 24 May at 8:18am:
“I have just had $539.71 taken from my account would you like to explain please? This is the original amount form Macquarie not the amended amount. Again not happy”
[87] The Applicant responded to Ms Wessling at 8:19am:
“It’s all good Michele, this will all be set by tomorrow. I was waiting for the documents from Macquarie which are coming through today. Everything will be refunded by tomorrow. You’ll have he (sic) new documents and then this entire loan will start again from scratch.”
[88] Ms Wessling again replied at 8:27am:
“Why could you not of (sic) told me this before now? Why is it that I have to email you? The last email I sent to you asked you to keep me posted with what was happening and yet you haven’t. You have until the close of business today Sam. If nothing has been rectified you will leave me no option but to seek legal advice. Communication is the key to any relationship be it business or not. I am angry and disappointed. I will wait to HEAR from you before COB today.”
[89] At 6:10pm on 24 May 2018, the Applicant forwarded to Ms Wessling an email from a Senior Associate with the Macquarie Group. That email was sent to the Applicant at 6:08pm and stated:
“Good morning Sam,
We can confirm that we have proceeded with the flat cancel for Michele Wessling. We will be refunding all monies paid to date. This can take up to 10 Business Days. However, I’ve pushed this through as a matter of urgency.
Please amend the contract as presented.”
[90] Interestingly, that email chain also includes an email from the Senior Associate to the Applicant dated 11 May at 9:48am that states:
“Good Morning Sam,
Thanks for confirming.
With these types of changes to the contract, we wouldn’t look to flat cancel in full, but rather make the amendments through a new application (as liability is changing for the client, and due to NCCP).
As such, you will need to look to submit an (sic) new application on McLease with the correct contract quote details as per what you have indicated below. If you locate the original application number on MacLease, there will be an option to ‘create from’ so you can bring all the relevant applicant details into a new application straight away. Once all other tabs have been populated correctly, and the quote is correct, please add to the notes that this is contract various of ELN989722, so credit know that this is a variation, as opposed to additional finance.
Once re-approved, you will need to have the client re-sign the new documents which can be downloaded from the ‘documents’ tab as normal. Once signed, please return these direct to myself and we will proceed internally to finalise the changes.
If there is any questions on the above, please reach out.”
[91] The amended contract was ultimately sent to Ms Wessling on 25 May at 10:57am.
[92] There was a lengthy text message exchange between the Applicant and Ms Wessling over the course of 24 and 25 May 2018. I have extracted that conversation below, leaving off the times of each text message but indicate who sent the text message:
“The Applicant: They will. They will be in black and white. I’ll send them to both you and your financial advisor. I’m also taking all the fees out of this loan as a courtesy to you. I’m so sorry we got here somehow. I just want to fix it. That’s why if you can call me today, I’ll talk you through it…(message obstructed)
Ms Wessling: I have talked to my finance advisor and he will ring you in an hour or so he has a meeting this morning. His name is Andrew Fenton
The Applicant: I know Andrew. He’s doing my mortgage for me.
The Applicant: Am I still fixing this for you Michele or do I need to organize (sic) this meeting with Dan?
Ms Wessling: You were suppose (sic) to already have had this fixed on the 11th when we last spoke. Obviously you only tried to cancel the loan yesterday. And why is the image blocked. I need to see and sign a contract even the email from Macquarie says I need to sign more docs, I never signed anything from Macquarie. This is so out of contol (sic) it is doing my head in.
The Applicant: Are we able to speak on the phone Michele? I either need this sorted out today or we have to cancel the whole deal? When I say cancel we will take the car back or we need to sort the finance out today.
Ms Wessling: Don’t threaten me Sam you are the one that has breached not me. I told you on the 11th of May to go ahead and rectify the loan. It should already been sorted.
The Applicant: Can I send these documents today?
I’ve got them coming through right now
I’m most certainly not threatening. I just want to fix this for you.
Documents are coming through now. I’ve also managed to drop the rate to 5.00%
Did that come through ok?”
[93] Ms Wessling then sent the Applicant a screenshot from the email sent by the Applicant on 11 May 2018, stating that the details were “[N]ot exactly the same”. The Applicant responded:
“The car is $23,335.01 I made a mistake as I didn’t have the purchase agreement at home with me. Can you double check your car contract for me?
Also you don’t need to sign these documents should you agree. This is a contract variation. All the money you’ve paid thus far minus what the repayments should have been will be refunded to you today upon your agreement.
Did you want me to forward these to Drew as well?”
[94] On 25 May 2018, Ms Wessling decided to escalate the matter with the Respondent. Ms Wessling sent a text message to Malcolm:
“Hi Mal it’s Michele (2017 Blue ASX) purchased from you late March. I need a meeting with the principal or manager of the cat (sic) yard. I have had no end of problems with Sam regarding finance. Still have no loan in place. I have put off going to the manager but enough is enough and I really need this sorted. Can you please call me or text me the managers email. Thanks Malcolm”
[95] Malcolm responded to Ms Wessling with Mr Hunt’s email address. It appears from the text messages that Malcolm also attempted to phone Ms Wessling.
[96] Also on 25 May 2018, at 11:18am, Ms Wessling emailed Mr Hunt, copied to Mr Fenton:
“Hi Dan, I really need to organize (sic) a meeting with you in regards to my finance for my car that I thought I purchased on the 31 of March 2018. As of today finance has still not been established and several financial laws have been breached. I was told on the 30th of March that my loan application had been approved and that I could pick the car up.
More loan applications were made on my behalf without my knowledge.
I really need to have this matter sorted as soon as possible as it is causing stress and stopping me for applying for a mortgage to purchase a rental property”
[97] Mr Fenton replied at 11:28 saying:
“Hi Michele,
Can you please let me know once this has been rectified.
I have been updating the real estate agent and solicitor, however without an accurate timeframe to resolve the below matter I am unable to finalize (sic) your Home Loan application. This is as per our discussion under the responsible lending act I must give an accurate statement of your financial position, however the loan amounts for the car finance seem to have changed significantly ($21,035 up to $28,392).
As discussed I will need to give the agent a follow up call by COB today to pass on an update to the vendor, as they have been quite accommodating with our delays, however we will need to provide an accurate ETA, as I would hate for you to miss out on the purchase of the property.”
[98] Mr Hunt responded to Ms Wessling and Mr Fenton at 12:19pm, copying his reply to Mr Stankiewicz:
“Hi Michele and Andrew,
My apologise for late response I am currently at a conference.
However, I have asked Rob who is copied on this email to attend and action your requests below.”
[99] Mr Stankiewicz called Ms Wessling to discuss her complaint ultimately requesting that a meeting should occur. Mr Stankiewicz requested that Ms Wessling send through all information that she had in relation to her dealings with the Applicant. Ms Wessling did so on the evening of 25 May 2018.
[100] Ultimately, Ms Wessling met with Mr Stankiewicz and Mr Hunt on 1 June 2018 at the Nambour dealership. Ms Wessling’s partner attended with her. At the meeting, Ms Wessling conveyed her recollection of events, which Ms Wessling records in her statement as follows:
“(a) I came into the dealership and purchased a car.
(b) On the same day I met with the Applicant and signed some paperwork which I understood to be Nissan paperwork.
(c) Sometime after taking delivery of a car, I received a letter from Nissan Finance saying that my loan application had been declined.
(d) I then received another letter from Subaru saying that my finance application with them had been approved.
(e) I did not sign documents relevant to an application with Subaru.
(f) When money came out of my account I decided to escalate matters with [Mr Hunt]”
[101] Mr Stankiewicz asked Ms Wessling if she had signed any paperwork in relation to the Subaru Finance application, and Ms Wessling replied that she did not. Mr Stankiewicz showed Ms Wessling the Macquarie Leasing paperwork that purported to be signed by Ms Wessling and Ms Wessling denied that it was her signature on those documents. In particular, Ms Wessling recalls Mr Stankiewicz showing her a loan schedule, a privacy form and a ‘requirements and objectives for finance’ form. Ms Wessling also noted that each of those documents purported to be signed on different dates, and were dates on which Ms Wessling had not attended the Respondent’s premises. Ms Wessling made a statutory declaration to this effect, although it appears that the statutory declaration itself was prepared by someone else. The statutory declaration is dated 1 June 2018 and states:
“I applied for finance for the purchase of a [vehicle] with Nissan Financial Services on 24/3/18. I took delivery of said vehicle on 31/3/18 and signed a finance contract with Nissan Finance (contract #P-20180326486000) on that date. I later received a letter from Nissan Finance, somewhere about April 11th, stating that my application for finance was not successful. I then received a letter from Subaru Finance (Macquarie Finance) stating that I had been approved for finance and then later had been direct debited $539.71 for my first repayment.
I do declare that I have never signed a privacy statement or any finance documentation from Subaru Finance (Macquarie Finance) at any point.”
[102] In this meeting, Ms Wessling sought a “guarantee” from Mr Hunt and Mr Stankiewicz that this matter would be taken further. Ms Wessling was informed that the Applicant had been stood down pending an investigation and “they” said words to the effect that this may give them grounds to proceed with a termination.
[103] In relation to the documents the focus of this matter, Ms Wessling has annexed various documents to her statement that she states were not signed by her.
[104] The first document is styled “Application for Credit – Privacy Consents/Acknowledgments”. This is a three page document and it is directed to “Macquarie Leasing Pty Limited”. The foot of the document references “Application ID: ELN1989722”. On the third page of the document there is a box under the statement “Name and signature of individual(s) giving his/her consent as customer or guarantor”. The document then records Ms Wessling’s name and contains a signature, which purports to be Ms Wessling’s signature. The signature is dated by a typewritten date of 5 April 2018.
[105] Ms Wessling states that the signature on the document is not her signature. Ms Wessling’s evidence is that she has never been advised by the Applicant or anybody else that this document was required. Ms Wessling also states that she did not attend at the Respondent’s premises on 5 April 2018, and did not meet the Applicant that day.
[106] The next document is on a Subaru Finance letterhead and it styled “LOAN SCHEDULE”. This is a six page document and it is directed to “Macquarie Leasing Pty Ltd”. The foot of the document references “Application ID: ELN1989722”. On the sixth page of the document there is an area for signatures under the statement “By signing this Schedule, you agree that we may give you a notice or document electronically pursuant to clause 22 of the Standard Conditions”. It then asks for it to be signed by the Borrower. The document records Ms Wessling’s name and contains a signature, which purports to be Ms Wessling’s signature. The signature is dated by a handwritten date 20 April 2018.
[107] Ms Wessling states that she did not sign this document. Ms Wessling did not meet or otherwise see the Applicant on 20 April 2018 and signed no documents on that date. Ms Wessling recalls this date particularly well because it is her birthday. On this day she spent the morning with family and then worked in the afternoon. Ms Wessling’s evidence is that the signature that purports to be her signature on the document is not her signature.
[108] The third document is styled “Declaration of Customer Financial Situation and Requirements and Objectives”. It bears the “Applicant No.” of ELN1989722. The Applicant is identified as Ms Wessling. It is a three page document, with the last page being a “Declaration and Signature”. The document is purported to be signed by Ms Wessling, and has a handwritten date of 23 April 2018.
[109] Ms Wessling maintains that the signature on this document is not hers. Ms Wessling did not attend to see the Applicant on 23 April 2018 or otherwise see him on that date.
[110] In relation to the signatures on the documents, Ms Wessling states:
“I have been asked to comment on why I dispute that the signature on the documents referenced [above] were mine. Firstly, as I have said above, I did not attend upon the Respondent or the Applicant on the dates that these documents were allegedly signed. I have previously worked for a mortgage broken and so I have a good understanding of the importance of signing and dating documents accurately. I do not sign documents without dating them in the appropriate field.
Secondly, I make the following observations about those documents:
a) in my view, the signatures do not look like my signature;
b) The ‘Wessling” part of my signature looks completely different, because the double ‘s’ looks very different to how I would usually perform my signature;
c) I also note that I typically loop the ‘l’ in my signature and these signatures do not match those usual ‘loops’; and
d) My signature is usually performed with more of a slant than those signatures shown to me in the above documents.”
[111] Mr Stankiewicz, also gave evidence in relation to the application. Mr Stankiewicz oversees and manages the Business Managers in all of the Respondent’s Queensland dealerships. Mr Stankiewicz has given evidence of a “typical” car sale process in the Respondent’s business, involving a Business Manager, such as the Applicant. That process includes:
“(f) The Business Manager will conduct an asset and liability test to determine the assets and liabilities of the customer.
(g) The Business Manager will arrange for a deposit to be paid on the vehicle.
…
(i) One the finance application is complete, the Business Manager will submit the application the lender.
(j) Sometimes the finance application is approved straight away. Where this occurs, the Business Manager should notify the sales team and the customer of the approval. The Business Manager is then responsible for ensuring the finance contract and the Respondent’s purchaser order is signed before delivery of the vehicle.
(k) Sometimes the finance application will come back with the lender requiring particular conditions to be fulfilled before approval will be granted. Those conditions must be satisfied before approval is obtained. Therefore, the loan is not approved at that time, but if the conditions are met, then the application will be reconsidered for approval.
(l) Relevant to delivery of the vehicle, the Respondent never releases a vehicle to a customer unless it is 100% sure of the outcome of the finance application. The typical process is that an unconditional approval will be received relevant to the finance application, and only then will delivery to the customer be scheduled. Even then, the Respondent requires the finance contract to be signed by the customer before release of the vehicle.
(m) I confirm that where the Respondent is providing the finance, we do not require settlement of the loan before delivering the vehicle. That is, we do not require the funds paid by the lender for the vehicle to clear our account before we release the vehicle. This is because in these circumstances, the Business Manager should be 100% sure that the loan is approved, and so there can be certainty that the settlement funds will be received.
(n) the Respondent’s practice is to never let a vehicle be delivered to a customer without unconditional approval of the finance application.
(o) we do sometimes put in place a loan car agreement, but only in rare circumstances, and to my knowledge, never where the finance application is not unconditionally approved. An example of where we may consider utilising a Loan Car Agreement is where the customer is funding the car through cash or a third party, and they show us remittance to demonstrate that the funds have been transferred from their account (or the third party’s account), but the funds have not yet hit the Respondent’s accounts.
If a finance application has not been approved, then it is the Business Manger’s role to be firm with sales personnel on the non-release of the vehicle.”
[112] Mr Stankiewicz first became involved in Ms Wessling’s issues on 25 May 2018. Mr Hunt called Mr Stankiewicz to advise that he had received the complaint and that Mr Stankiewicz as to investigate it. Mr Stankiewicz called the Applicant, requesting the documents in relation to Ms Wessling’s finance deal. The documents were not accessible in the Respondent’s internal log ‘Finance Accelerator’. The Applicant advised Mr Stankiewicz that he had not had an opportunity to scan the documents into the log as yet, but would do so immediately.
[113] The Applicant provided the documents to Mr Stankiewicz by email at 1:03pm on 25 May 2018. The documents attached to that email include the signed documents referred to in paragraphs [94] and [96] above, but not the document in paragraph [92]. At 2:17pm on this day, the applicant emailed Mr Stankiewicz to say that the documents had been scanned into the system. Mr Stankiewicz states that his enquiries indicated that they documents had not been scanned into the system,
[114] Mr Stankiewicz first spoke to Ms Wessling on 25 May 2018 at around 5pm. Ms Wessling conveyed her version of event to Mr Stankiewicz. Mr Stankiewicz recalls that version of events to be:
“She attended the Nambour dealership on 24 March 2018;
She chose to purchase a Mitsubishi ASX, and she chose to finance her purchase of the vehicle;
She completed a finance application with the Applicant, with the lender to be Nissan Financial Services;
A week then passed without Ms Wessling receiving confirmation from the Applicant as to whether her finance application had been approved or declined;
She was then contacted by Malcolm Flanigan and he told her that the finance had been approved and that she could pick the vehicle up;
She confirmed that she would attend to pick the vehicle up the next day, and she did so;
The following week, no payment came out of her account relative to the alleged loan;
She contacted the Applicant and he confirmed that payments would commence the following week;
The next week, still no payments had come out of her account;
Ms Wessling then received a letter from Nissan Financial Services confirming that her application had been declined. She then received confirmation of finance approval with Macquarie Leasing. Ms Wessling said to me words to the effect that:
“At this point alarm bells started going off”
She then had a payment taken out of her bank account by Macquarie Leasing, further confirming her concerns regarding her finance; and
Ms Wessling alleged that she had never signed any loan documents relevant to a finance application with Macquarie Leasing.”
[115] At 6:48pm on 25 May 2018, Mr Stankiewicz sent an email to Mr Hunt, and others, stating:
“Gents, I think we have another instance of fraud with Sam. Nothing 100%, but the customer has said she never signed any paperwork with Macquarie last month and payments started coming out of her account. Doesn’t look promising. We also have nothing in FA from the original docs (version 1) with signatures. See attached below.”
[116] Following this, Mr Stankiewicz took various steps to resolve Ms Wessling’s concerns.
[117] Ultimately, Mr Stankiewicz, Mr Hunt and the Applicant met on 29 May 2018. Mr Stankiewicz states that he conducted the majority of the meeting and that the purpose of the meeting was to explain the allegations to the Applicant, give the Applicant a chance to respond and stand him down pending further investigation. Mr Stankiewicz, without the Applicant or Mr Hunt’s knowledge, recorded the meeting. A transcription of the meeting was in evidence before this Commission. In that transcript, the Applicant is asked to convey the series of events from his perspective and does so.
[118] Mr Stankiewicz and Mr Hunt met with Ms Wessling and her partner on 1 June 2018. Ms Wessling was again requested to give her version of events to Mr Stankiewicz and Mr Hunt. Ms Wessling was shown the documents recounted above and asked if they were her signatures on those documents. Ms Wessling confirmed they were not. Mr Stankiewicz states that Ms Wessling agreed to sign a statutory declaration which “we” – I take to mean Mr Hunt and Mr Stankiewicz – prepared for her.
[119] Mr Stankiewicz was not involved in the Applicant’s dismissal.
[120] In conducting his investigation Mr Stankiewicz found that the initial application for finance through Nissan Financial Services was declined by letter dated 26 March 2018. Mr Stankiewicz has also identified the Applicant’s handwritten notes in relation to Ms Wessling. Those notes record:
“Spoke to Christian at NFS Decline the Deal. Have to put through MacLease.”
[121] This handwritten note is written next to the date 29 March 2018. Mr Stankiewicz concludes that this means the Applicant was aware as early as 29 March 2018 that Nissan had declined the application for finance outright and that a further application would need to be made. However, the Applicant proceeded to have Ms Wessling sign Nissan Finance paperwork when she collected her vehicle on 31 March 2018. In the circumstances, the Applicant should not have released the vehicle to Ms Wessling.
[122] Mr Daniel Hunt, Dealer Principle of the Respondent’s Nambour and Noosa dealerships also gave evidence in these proceedings. In relation to the meeting with the Applicant and Mr Stankiewicz of 29 May 2018, Mr Hunt recalls:
“At the meeting, Rob and I raised with the Applicant that serious allegations had been raised against him, and Rob asked him whether he would like to have a support person with him for the meeting. The Applicant said that he did not want a support person. Rob told the Applicant that the allegation was that he had submitted a finance application with Macquarie Leasing (I may have said Subaru, which is another name for Macquarie Leasing) without approval from the customer and that he then submitted a loan without approval.
Rob told the Applicant that there are allegations that the customer was led to believe that her finance with Nissan was approved, but that loan did not actually settle.
Rob also told the Applicant that the customer was alleging that the signatures on the Macquarie Leasing loan documents were not her signatures, and that there was an allegation against him by Ms Wssling that he had forged her signatures.
Rob informed the Applicant that we still had to meet with Ms Wessling, and that we were meeting with her that Friday, but that we wanted to first hear his version regarding the chain of events.
The Applicant confirmed that he did not get a finance application approved with Nissan for Ms Wessling.
He then agreed that he submitted a finance application for Ms Wessling with Macquarie Leasing.
I recall that he denied that he fraudulently signed the Macquarie Leasing loan schedule and privacy form. The Applicant said that Ms Wessling definitely signed those documents when she came into the dealership to get her aftermarket products completed on the vehicle.
The Applicant also said to me that if he is at fault of anything it is that he increased the interest rate which would have increased the amount of Ms Wessling’s repayments.
Rob and I told the Applicant that we were going to suspend him with pay until we completed a full investigation. I said to the Applicant words to the effect of “I cannot have you at the dealership dealing with customers given the allegations.”
Rob then said to the Applicant that we would notify him when the investigation was completed, which would be after we met with Ms Wessling. Rob then asked him whether there was anything else he needed to say or do, and he confirmed that there was not.
Following this, we ended the meeting and the Applicant was driven home. “
[123] In relation to the concession made in paragraph (h) above, Mr Hunt states:
“I confirm that the increase in interest rates is a relevant admission, as a Business Manager can generate more commission for themselves by increasing interest rates. This is because there is a system with the lenders where the higher the interest rate that a customer accepts, the more potential commission can be earned by the Business Manager who signs the customer up to those interest rates.”
[124] Mr Hunt ultimately met with Ms Wessling, with Mr Stankiewicz and recalls:
“The first time she heard that the loan with Nissan was not approved was when she got a letter from Nissan in the mail.
She then received a further letter from Macquarie Leasing which confirmed the approval of a loan with Macquarie Leasing.
She said that the only finance documents that she signed related to the loan with Nissan.
Rob then showed her the signatures on the Macquarie Leasing loan schedule, privacy form and requirements and objectives for finance form, which were alleged to be her signatures, and Ms Wessling denied that they were her signatures…
We then asked Ms Wessling if she was prepared to give a Statutory Declaration to that effect and she confirmed that she was.
We then worked with Ms Wessling to prepare the Statutory Declaration, and I recall that there was some back and forth regarding the wording, but at all times the content of the Statutory Declaration was Ms Wessling’s version of events. We had arranged for a Justice of the Peace to be in attendance to witness Ms Wessling’s signature on the Statutory Declaration, and his name was Ross MacNellie. Once the Statutory Declaration was complete, it was signed by Ms Wessling and witnessed by Ross.”
[125] Mr Hunt spoke with the Applicant, by phone, on Saturday, 2 June 2018. In that phone call Mr Hunt conveyed that on the basis that Ms Wessling had declared, by way of statutory declaration, that the signatures on the MacLease paperwork were not hers, Mr Hunt was satisfied that the Applicant had engaged in fraud.
[126] Mr Malcolm Flanigan also gave evidence in the proceedings. In relation to the events following Ms Wessling’s purchase of the vehicle and prior to the release of that vehicle. Mr Flanigan states:
“I recall that 4 or 5 days after Ms Wessling committing to her purchase, I had still not received an answer from the Applicant as to whether Ms Wessling’s finance application had been approved. I would ask the Applicant daily for an update and would receive a general response in words to the effect “I’m working on it”.
On 30 March 2018, I asked Darren Hearndon, Sales Manager and my direct report, to speak to the Applicant because I could not get any answer from him, and I was aware that we had to get after-market purchases completed, and it was getting close to the end of the month. I recall that I spoke to Darren in Grant Vinner’s office. Grant was in his office sitting down and Darren was standing up. I said to Darren that I wanted an update on Ms Wessling’s purchase of the ASX, because I had not heard anything. I recall that Darren called the Applicant into the office, and the Applicant told us that Ms Wessling’s finance application had been approved, he just needed a copy of her husband’s license for the spousal offset.
To explain, a spousal offset is where the application takes into account that bills are shared between two people. So even though the loan might be going in one person’s name, the income of both people in a couple is taken into account in assessing that finance application.
In that same discussion, I recall that the Applicant said that he could not contact Ms Wessling, and so he could not get a copy of her partner’s license. I recall that Darren directed me to contact Ms Wessling to get a copy of the licence.
The Applicant never once mentioned to me that Ms Wessling’s finance application was ‘conditioned’.”
[127] Mr Daniel Hearnden’s recollection of events relevant to the release of Ms Wessling’s vehicle is:
“After 24 March 2018, I made daily enquiries with the Applicant regarding the progress of Ms Wessling’s finance application. As it approached the end of the month, our General Manager at the time Grant Viner wanted to know what cars were going to be delivered that month, so I asked the Applicant in words to the effect:
“How’s the Mitsubishi ASX deal going?”
I believed at the time that the Applicant was a competent Business Manager in terms of his skills, but his communication was very poor, and it was hard to get straight answers from him. When I would ask how the deal was going, he would give very generic responses and with no actual detail, for example, he would say “I am working on it”. At one point I raised this issue with Grant Viner and he directed me to make requests for information to the Applicant via email to see if I could obtain a better response.
On Thursday, 29 March 2018, I was in my office with Grant Viner and Malcolm when the Applicant came into my office and said words to the effect of:
“Good news. I’ve got the loan approved for the ASX. I just need her partner to come in with his licence and also sign a form and we’ll be good to go.”
At the same time, the Applicant also mentioned that he was having some difficulty contacting Ms Wessling. In the Applicant’s presence, I said to Malcolm, words to the effect of:
“You need to get hold of Michele and get her to come in with her partner to bring in a driver’s licence and sign the necessary form with Sam.”
On the 31 March 2018, I went into the Applicant’s office early and said to him, words to the effect of:
“Great news. Mal has spoken to the customer. She’ll be in at 9.00am with her partner to bring in the documents you need and sign the documents. They will take delivery of the car straight away.”
The Applicant said:
“Oh wait”.
I said:
“What’s wrong?”
The Applicant said words to the effect:
“I’ve got to send in her licence and the form and she will be good to go. I’ll have an answer back by the end of the day.”
At that time Ms Wessling had already arrived at the dealership, I said to the Applicant words to the effect of:
“What we’ll do is we will put Michele on a loan car agreement until the finance comes through as we don’t want to inconvenience the customer any longer.”
I then spoke to Grant Viner and he agreed with my suggestion of a loan car arrangement in this circumstance. I confirm that I had only considered a loan car on the basis that the Applicant had told me that the finance was approved, and all that had to be done was some documentation needed to be delivered to the lender. I would not have suggested a loan car agreement if I had not been led to believe that the finance application was already approved.
After leaving the Applicant’s office, I noticed the Applicant was in conference with Ms Wessling for some time, I estimate approximately 30 minutes which is consistent with finalising a finance contract transaction. During this time, I spoke with Grant Viner and he agreed with my loan car suggestion. I needed Grant’s approval as I did not have the authority to authorise a Loan Car Agreement by myself.”
Closing Submissions
[128] The Respondent submitted that it did not summarily dismiss the Applicant solely because the Respondent considered that he had engaged in fraud. The Respondent submitted that Mr Hunt’s evidence was that he considered the whole of the Applicant’s conduct, including misinforming the sales staff that Ms Wessling’s application for finance had been approved. 26
[129] The Respondent also submitted that the Applicant was aware the finance application had been rejected, pointing to the handwritten note of the Applicant that the deal had to be “put through Mac Lease” on 29 March 2018. The Respondent submitted further that the Applicant had prepared all the necessary loan documents, without a basis for their preparation, which was dishonest and a fraud on the Respondent and Ms Wessling. 27
[130] In the circumstances, the Respondent also submitted that the Applicant failed to follow a lawful and reasonable direction given to him – that no car was to leave the showroom until sales were unconditional and until clear funds were in the Respondent’s account. The Respondent submitted that this policy was known to all of its employees, including the Applicant. 28
[131] The Respondent submitted that Ms Wessling only visited the dealership on one occasion, being 17 April 2018, and that none of the Macquarie Loan documents bearing her signature bear that date. The Respondent submitted further that the inference may reasonably and readily be drawn that the Applicant, or someone else at his request, and by whatever means, forged Ms Wessling’s signature. 29
[132] The Respondent submitted further that, in defending this unfair dismissal application, the Respondent is entitled to rely upon any matter pre-dating its decision which would justify the decision it made. 30 The Respondent submitted further that, while it may have had other stated reasons for the termination at the time, in defending the Applicant’s unfair dismissal application, it is entitled to rely upon any conduct of the Applicant up to and including the date of his dismissal as conduct which justifies the termination of his employment. In this regard, the Respondent submitted that the full particulars of the Applicant’s misdealing only came to light after the termination of the Applicant’s employment when Mr Stankiewicz assumed responsibility for the Applicant’s outstanding work.31
[133] The Respondent submitted that it gave the Applicant an opportunity to respond to the allegations in the meeting the Applicant attended with Mr Hunt and Mr Stankiewicz. The Respondent submitted that it is recorded in that meeting that the substance of the allegations were put to the Applicant and he was asked for his response to them. The Respondent submitted further that the Applicant was offered a support person in that meeting and that he declined to bring one. 32
[134] The Respondent conceded that if it were found that its investigation process was deficient, the Applicant should be entitled to one week’s wages as compensation to reflect the time it would have taken for the Respondent to have conducted a more detailed investigation. 33 However, the Respondent noted that it does not have dedicated human resources personnel and that neither Mr Hunt nor Mr Stankiewicz have human resource qualifications.34
[135] The Respondent rejected any submission that a Jones v Dunkel inference should be drawn against it for failing to call Mr Murray. The Respondent reiterated that it was Mr Hunt’s decision alone to terminate the Applicant’s employment. 35
CONSIDERATION
[136] In considering whether a dismissal is harsh, unjust or unreasonable, the Commission must have regard to the matters in s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[137] The employer bears the onus of establishing that there was a valid reason for a dismissal. 36 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”.37 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,38 and the validity is judged by reference to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has done.39 The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal.40 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship,41 or evinces an intention that the employee no longer intends to be bound by the employment contract.42
[138] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. Vice President Hatcher observed in Bista v Glad Group Pty Ltd, 43 that the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.44
[139] Regard must also be had to the seriousness of the allegations made against the Applicant and to what is often referred to as the Briginshaw principle. This principle was established in Briginshaw v Briginshaw 45 in which it was said:
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion’.”
[140] While the standard of proof does not ever arise beyond the balance of probabilities, the strength of evidence may vary according to what it is that is sought to be proven. That is, more serious allegations may require stronger evidence.
[141] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 46
[142] Each of the statutory criteria in s.387 will be considered in turn.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[143] The evidence discloses that Ms Wessling attended the dealership on 31 March 2018 to take delivery of the vehicle, and again on 17 April 2018 to have aftermarket items fitted to the vehicle. The Applicant stated that it was on 17 April 2018 that Ms Wessling provided the additional documents requested to facilitate the loan and that she did so in his presence, and he witnessed her signature.
[144] The Respondent noted that the documents relating to the Macquarie Leasing finance application are dated 5 April 2018, 20 April 2018, and 23 April 2018. Ms Wessling stated that she did not sign any of those documents.
[145] Ms Wessling’s actions in her dealings with the Applicant, do not shower her with glory. Ms Wessling has conceded that she provided the Applicant with false information in relation to her application for finance as regards her assets, being a house. 47 Ms Wessling conceded that that information may have come across as misleading.48 Ms Wessling did not accept that she gave incorrect information in relation to the value of the property.49 Ms Wessling accepts that she also withheld from the Applicant information in relation to rent she was paying in relation to the home that she told the Applicant she owned.50
[146] Ms Wessling’s answers on these points were less than convincing, and affect her credit as a witness. Ms Wessling’s own evidence is that she had previously worked for a mortgage broker and because of this has a “good understanding” of the importance of signing and dating documents accurately. 51 Ms Wessling at various points references in her emails and her evidence her “financial adviser”. The person to whom Ms Wessling appears to be referring is, in fact, a mortgage broker and not a financial adviser. It appears that this mortgage broker was assisting Ms Wessling to apply for a home loan. These specific matters were not, however, put to Ms Wessling in cross-examination.
[147] Ms Wessling however maintained that she did not sign the documents for the second finance application. 52 I accept that Ms Wessling is not an entirely credible witness given the concessions she has made and some of the inconsistencies in her evidence. However, these concessions and inconsistencies are not to a level where I would discount her evidence in its entirety, although I consider some caution is called for in assessing that evidence. It has often been stated that not every inconsistency in a witness’s evidence will give rise to an adverse finding of credit. In this matter, I assess Ms Wessling’s credit on the basis of her evidence but, perhaps more importantly, the documentary evidence before the Commission.
[148] Ultimately, I find that Ms Wessling did not sign the documents at annexures MW23, MW24 and MW25 to her statement in these proceedings. I make this finding because of Ms Wessling’s consistent denials as to having signed the documents, to even having attended the Respondent’s premises on these dates – which I do not understand the Applicant to dispute – and, to some extent, from my own viewing of the signatures on those documents. Ms Wessling’s signature appears in various places throughout the material and the signatures on these documents are sufficiently different to other, verified, signatures that even an untrained eye can discern that they are different.
[149] It is more difficult to determine Ms Wessling’s actual knowledge of various events given the disputed conversations over various days, although ultimately I do not consider this to be significcant. Ms Wessling’s mobile phone records, for the phone on which these conversations were said to have occurred, are not in evidence before the Commission and were not called for. No other version as to why Ms Wessling ultimately had a problem with the second finance application was put to her during cross-examination. It may very well be that Ms Wessling did know about the further finance and, when it turned out that the repayments were higher than expected, she became concerned. This was however not put to Ms Wessling.
[150] As set out it is appropriate to treat Ms Wessling’s evidence with caution. Some of Ms Wessling’s own evidence is improbable and inconsistent. For instance, Ms Wessling says in her statement that about a week to ten days before apparently first finding out about the finance through an alternate lender, she found out, by way of letter, that the finance through Nissan Finance had been declined. Despite the fact that this apparently caused alarm bells to ring and that Ms Wessling must at that point have realised she had a vehicle that she had not actually paid for she took no action, whatsoever. It is only when she received the correspondence from the second lender that she took, immediate, steps.
[151] The Applicant in his evidence in-chief stated that Ms Wessling “signed all of the Macquarie Leasing documents” 53 in his office when she returned to the dealership to have aftermarket items attached. To this, each of the documents at MW23, MW24 and MW25, however, bears a different date, being 5, 20 and 23 April respectively. Indeed, the Applicant accepts that as far as his recollection is concerned, the only other date on which Ms Wessling attended the dealership was when she attended to add the items to her vehicle.54 The Applicant’s initial evidence was that initial applications for finance are done electronically and hence, not signed. The signatures are not done “until such time the loan is fully approved by the lender”55.
[152] Just as Ms Wessling maintained her denials during cross-examination, so too did the Applicant. The Applicant maintained that Ms Wessling did not specify to him that she would be comfortable with finance that equated to repayments of no more than $100 per week. 56 The Applicant maintained that prior to organising delivery of the vehicle he did not advise that finance had been approved57 and nor did he know at that time that finance has been declined through Nissan58.
[153] However, in large part on the basis of the documentary evidence, in particular the Applicant’s own notes, I do not accept the Applicant’s denials in this respect. I find that the Applicant knew, at least, that the Nissan Finance application was in doubt and that on 29 March Nissan finance had “declined the deal”. Despite Mr Betar’s denials to the contrary, I find that this documentary evidence records the contemporaneous events by the Applicant himself.
[154] Critically, the Applicant maintains that he himself witnessed Ms Wessling sign the variously dated documents, but that this occurred on 17 April 2018. 59 The Applicant continued to deny that he, or somebody else at his request, signed that document.60 The Applicant also maintained his denials in respect of the other documents.61 Given that I have accepted that the conclusion from the evidence in totality is that Ms Wessling did not sign the documents at all, and therefore not on 17 April 2018 in the Applicant’s presence, it follows that I reject the Applicant’s evidence. Given the way in which the Applicant put his case, that he witnessed Ms Wessling sign the documents on 17 April 2018, it makes it difficult to come to any other conclusion.
[155] I find that the Applicant knew, at 29 March 2018, that the application for finance had been declined by Nissan Finance. I find that the Applicant did not convey this directly to others at the Respondent, which had the result that the vehicle was released to Ms Wessling. The Applicant directly contributed to that state of affairs, whether he ultimately had the authority to make the decision to release the vehicle or not, it was information from the Applicant that was used to reach that decision. I do not accept the Applicant’s denials of having signed the relevant documents as Ms Wessling. The Applicant’s version of events, does not coincide with the documentary evidence.
[156] There was a valid reason for the Applicant’s dismissal. Any pressure that has been brought to bear on him does not outweigh the very significant repercussions of the Applicant’s actions. I am left with the impression that the Applicant dug himself into a hole, and kept on digging.
(b) whether the person was notified of that reason
[157] The Applicant attended a meeting with Mr Stankiewicz and Mr Hunt on 29 May 2018. The Applicant was invited to bring a support person, but conceded that he declined to do so.
[158] The Applicant was notified of the dismissal but not with reasonable detail.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[159] The Applicant submitted that he should have been given a further opportunity to respond to the allegations after Mr Hunt and Mr Stankiewicz met with Ms Wessling on 1 June 2018. The Applicant was not provided with this opportunity to respond with the full knowledge of the allegations.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[160] The Applicant accepts that the Respondent allowed the Applicant to have a support person present to assist him during the suspension meeting on 29 May 2018.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[161] The dismissal did not relate to satisfactory performance, such that I consider this criterion to be irrelevant. To the extent that the Respondent has referred to or relied upon earlier allegations, I have not taken them into account, given my findings about valid reason in this instance.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[162] The Respondent is not a small business. It does not have dedicated human resources personnel. While the process may not have been best practice, I am satisfied that the Applicant knew what the Respondent’s concerns were, that the Applicant had an opportunity to respond to those concerns, and did so.
(h) any other matters that the FWC considers relevant.
[163] The Applicant submitted that his dismissal has affected his state of mind, that he is an honest person, and has never been accused of wrongdoing by any employer previously.
[164] The Applicant submitted that he is actively seeking employment within the motor industry, and has had a few interviews. However, the Respondent notes that the Applicant has not submitted any evidence of these interviews or significant endeavours to mitigate his loss.
[165] The Applicant further submitted that due to the Respondent “spreading malicious and untrue gossip”, his ability to secure employment has been damaged. 62
CONCLUSION
[166] On the basis of my findings above, I find that there was a valid reason for dismissal, the procedure, while not perfect, was sufficient, and that in any event, the valid reason that I have found was of sufficient gravity to outweigh any minor procedural difficulties. Weighing matters up overall, the dismissal was not harsh, unjust or unreasonable. For the aforementioned reasons the application made pursuant to s.394 is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr M White, of Counsel. For the Applicant.
Mr M Healy, of Counsel. For the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR712575>
1 Exhibit 4, paragraph 9.
2 Ibid at paragraph 35(c).
3 Ibid at paragraph 83.
4 Ibid at paragraph 97.
5 Ibid at paragraph 102.
6 Ibid at paragraph 68.
7 Ibid at paragraph 115.
8 Final Submissions of the Applicant filed 26 October 2018, at [12] referring to Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.
9 Final Submissions of the Applicant filed 26 October 2018, at [20], [21].
10 Final Submissions of the Applicant filed 26 October 2018, at [23], [24].
11 Final Submissions of the Applicant filed 26 October 2018, at [28]; referring to Transcript 25 September 2018 at PN1315.
12 Final Submissions of the Applicant filed 26 October 2018, at [29]; referring to Transcript 25 September 2018 at PN1318-1320.
13 Final Submissions of the Applicant filed 26 October 2018, at [37], [38].
14 Final Submissions of the Applicant filed 26 October 2018, at [40]-[43].
15 Final Submissions of the Applicant filed 26 October 2018, at [58]-[60], [64], [67]-[69].
16 Final Submissions of the Applicant filed 26 October 2018, at [93].
17 Final Submissions of the Applicant filed 26 October 2018, at [67]-[69], [71]-[74], [83].
18 Final Submissions of the Applicant filed 26 October 2018, at [90]-[92].
19 (1959) 101 CLR 298 at 320.
20 Final Submissions of the Applicant filed 26 October 2018, at [95]-[97].
21 Exhibit 7 at paragraph 8.
22 Ibid at paragraph 9.
23 Ibid at annexure MW1.
24 Ibid at paragraph 10.
25 Ibid at paragraph 15.
26 Respondent’s Final Submissions filed 16 November 2018, at [5].
27 Respondent’s Final Submissions filed 16 November 2018, at [10].
28 Respondent’s Final Submissions filed 16 November 2018, at [5].
29 Respondent’s Final Submissions filed 16 November 2018, at [10].
30 Shepherd v Felt and Textiles of Australia (1931) 45 CLR 359 at [373].
31 Respondent’s Final Submissions filed 16 November 2018 at [7], [19].
32 Respondent’s Final Submissions filed 16 November 2018, at [15], [16], [17].
33 Respondent’s Final Submissions filed 16 November 2018, at [16].
34 Respondent’s Final Submissions filed 16 November 2018, at [21] – [24].
35 Respondent’s Final Submissions filed 16 November 2018, at [26].
36 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
37 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
38 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
39 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
40 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
41 Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
42 North v Television Corporation Ltd (1976) 11 ALR 599.
43 [2016] FWC 3009.
44 Referring to Edwards v Giudice (1999) 94 FCR 561.
45 (1938) 60 CLR 336.
46 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
47 PN1020.
48 PN1021.
49 PN1153 to PN1154.
50 PN1057 to PN1059; PN1145 to PN1151.
51 Exhibit 7 at 55.
52 PN1083 to PN1093; PN1234.
53 Exhibit XX at 43.
54 PN269.
55 Exhibit XX at 66.
56 PN1014 to PN112.
57 PN113 to PN119.
58 PN222 to PN224.
59 PN287.
60 PN288 to PN289.
61 PN290 to PN304.
62 Annexure B to Applicant’s F2 application filed 14 June 2018.
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