Reema Saad v M.A Lisek & S.s Louth-Robins
[2023] FWC 2704
•15 NOVEMBER 2023
| [2023] FWC 2704 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reema Saad
v
M.A Lisek & S.S Louth-Robins
(U2023/6598)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 15 NOVEMBER 2023 |
Application for an unfair dismissal remedy – Applicant dismissed for serious misconduct in the form of a slur directed at business owners and manager – dismissal not unfair.
Reema Saad (Applicant) has made an unfair dismissal application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is M.A Lisek & S.S Louth-Robins (Respondent).
The Respondent objected to the Applicant’s unfair dismissal application on the basis that the Applicant resigned, such that there was no dismissal.
The matter proceeded to a Hearing before me on 25 October 2023. The Applicant was self-represented and gave evidence and called a further witness, Lara Fielding. For the Respondent, also self-represented, evidence was adduced from Merle Lisek (also referred to as Lilly Lisek). Sean Lisek also gave evidence as did Michelle Myers.
Initial matters to be considered
There is no dispute between the parties, and I am satisfied, in relation to three of the four matters referred to in ss.396(a)-(d) of the Act, as follows.
First, the Applicant’s application was made within the 21-day period required by s.394(2) of the Act (s.396(a) of the Act).
Secondly, the Applicant is a person protected from unfair dismissal, having completed the minimum employment period and earned less than the high income threshold (s.396(b) of the Act).
As to whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), I note that while the Respondent completed the Small Business Fair Dismissal Code Checklist, it made clear in doing so, and has maintained throughout the proceeding, that it did not dismiss the Applicant. I will return to the consideration of these matters below.
Finally, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy (s.396(d) of the Act).
Section 385 – was the dismissal unfair?
A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3”
Section 385(d) – Genuine redundancy
Section 385(d) may be dealt with briefly because as outlined in paragraph [5] above, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy. I am satisfied s.385(d) of the Act does not apply.
Section 385(a) – was the Applicant dismissed?
A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the Act. Section 386(1) of the Act provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
If the Applicant was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for the Applicant to pursue the unfair dismissal application. More specifically, if, based on the facts of this case, the Applicant’s employment was not terminated at the initiative of the Respondent (s.386(1)(a) of the Act), there is no jurisdictional basis for the Applicant to pursue the unfair dismissal application.
The provisions of s.386(2) and s.386(3) of the Act do not apply in this matter and the Applicant does not assert a forced resignation within the meaning of s.386(1)(b) of the Act.
Having commenced working for the Respondent in mid-April 2022 as a bartender engaged on a casual basis, the Applicant took an overseas holiday between 20 May 2023 and 2 July 2023. Prior to departing for this, the Applicant notified the Respondent that they would be “quitting at the end of July”. When requested by Michelle Myers, the bar manager, to indicate their availability to work upon return, the Applicant specified the period from 6 July 2023 until the end of July 2023. The eventual understanding of the Applicant and Ms Myers from this dialogue was that the Applicant would be allocated one shift per week during that period.
It would seem that the total number of shifts the Respondent was able to offer staff was declining during the last months of the Applicant’s period of employment. On 26 June 2023, Ms Lisek sent a message to the Applicant via Facebook that suggested there would be no available work upon the Applicant’s return. Although this would not have been news the Applicant wanted to hear, the Respondent sought to open in explaining the circumstances and rationale. The message gave rise to an exchange of messages between them that quickly became fractious. The Applicant sought clarity from Ms Lisek, being of the view that they had previously established their availability well in advance and recounting for Ms Lisek the communications with Ms Myers regarding this. The Applicant also spent time on 26 June 2023 messaging Ms Myers, in an attempt to establish what work might be available. From this dialogue, one shift per week was established as the most likely available offering for the Applicant, and the Applicant confirmed availability to resume work from Sunday 9 July 2023.
The Applicant was not receptive to Ms Lisek’s subsequent apologies for the state of the communications or any misunderstanding and confusion. When Ms Lisek signed-off stating “I have apologised for the miscommunication a few times now. But tbh: I feel like you don’t allow much of human errors in others & also just want to stay angry rn (sic). So welcome to do that, Reema, but I’m gonna let it go now”, the Applicant responded by refuting they had adopted a tone evincing anger. The exchange eventually ended with the Applicant stating “I don’t see the point in this, all I have asked was what was happening with my shifts, gave you evidence of me giving my availabilities from 2 months ago, and michelle sorted everything. I’m off comms now thank you!” This was followed by a reply from Ms Lisek stating “Ok, so I’m sorry you have been confused – I hope things have cleared up but that’s all I can do for now. If you want to keep chatting, let’s meet up in person”.[1]
At this point some discussion between Ms Myers, Ms Laura Simmons (co-manager with Ms Myers), Ms Lisek and Mr Lisek took place. Concerns relating to the Applicant’s conduct and performance during the period leading up to the time of the Applicant’s holiday were raised. The conclusion from the discussion was a decision to nonetheless offer the Applicant one shift per week in accordance with the arrangement previously arrived at between the Applicant and Ms Myers. While Ms Lisek had initially resolved not to raise the performance issues with the Applicant, largely because the Applicant was only going to be returning for a few weeks, her view changed as a result of the tenor of the Applicant’s messaging during their email exchanges on 26 June 2023.
As such, at 12:41pm on 11 July 2023, Mr and Ms Lisek sent an email to the Applicant with the header “Formal Conditions for Notice”.[2] In this email, some areas of concern regarding the Applicant’s performance were outlined and it was stated that due to a breakdown of trust and communication, the Respondent no longer felt comfortable with the Applicant working unsupervised shifts. The email also outlined issues the Respondent had relating to the Applicant’s performance, including:
a) regularly arriving late for work and subsequently telling others about the fact;
b) unsatisfactory level of cleaning pack-down on a number of closing shifts;
c) giving away a considerable amount of free drinks;
d) resisting the directions of new management; and
e) rudeness and/or hostility to other staff and regular customers.
The email stated the following:
“We would like to point out that in normal circumstances this would be a formal warning but since you have given us notice already, the best solution we can think of is to offer you to finish off your shifts in a supervised environment.
…
Also if we do note any further lack in your work ethic & performance we might have to consider ending the working relationship early.”[3]
The Respondent then explained, in the email, that any further shifts the Applicant was to perform would be under the supervision of a Manager. The Applicant responded very shortly after receiving the email, seeking the names of staff and patrons who had complained, before stating:
“I don’t see any accountability on your end about your communication about shifts considering you said you talked to Michelle and Laura saying there was no shifts for me.
Yet Michelle had no idea what you were talking about, and she was also able to easily get shifts for me. I asked repeatedly for clarity with if you were wanting to fire me, just say so. And here we are today.
Out of curiosity, how can an opening shift and a closing shift be supervised? I would be so happy to have either of you personally supervise me, let me know.”
The Respondent replied at 10:17am on 12 July 2023, with Ms Lisek stating in an email that the Respondent would not be providing names, confirming that the Applicant’s shift for the Sunday of that week would be supervised by Ms Myers and advising that from then no further shifts would be available that required only one person.[4]
The Applicant responded to this email at 9.03am on 13 July 2023 and amongst other things, accused the Respondent of making up complaints.[5]
The Respondent replied at 20:18 hours on 13 July 2023 through Ms Lisek, who wrote:
“Okk. Oughh…here we go then, attached the message I was referring to.
But, oh well – again, good luck with your anger Reema... I hope though you find something else to feed you one day. Or not. You do you. Okay, bye”.[6]
The Applicant also placed a series of posts in the Respondent’s staff Facebook group chat on 13 July 2023 which disclosed their exchanges with Ms Lisek on 26 June 2023 and detailed a separate source of disagreement with Mr Lisek. The Applicant then left the group chat, signing off with the following:
“Yes I got angry at him for it, for
shutting down any
conversation I tried to have
about it during those 7 months.apparently this is something
laughable now
anyway thanks everyone, other
than laura, sean & lilly, cunts”[7]
The Applicant admitted to posting this message on the Respondent’s staff Facebook chat and asserts they were no longer an employee at that point.[8] The Applicant bases this assertion on the belief that the email sent by Ms Lisek at 20:18 on 13 July 2023 was Ms Lisek saying goodbye and communicating the termination of the Applicant’s employment.
Ms Myers gave evidence that in a group chat of the Respondent’s managers that followed, the consensus view was that the message calling Laura, Sean and Lilly “cunts” was inappropriate and that Ms Myers would call the Applicant and ask them not to come in for any remaining shifts. Both Ms Lisek and Mr Lisek were aware that Ms Myers was going to telephone the Applicant.
Ms Myers said that when she telephoned the Applicant on 14 July 2023 and conveyed this advice, the Applicant replied that they did not want to come in anyway. The Applicant confirmed being told by Ms Myers not to come in for any more shifts[9] and said they regarded this telephone call as again confirming the dismissal. The Applicant also confirmed receiving a further telephone call from Ms Myers on 16 July 2023, during which Ms Myers requested the return of the keys the Applicant held.
I am not persuaded by the Applicant’s contention that they were notified of their dismissal by the email Ms Lisek sent at 20.18 hours on 13 July 2023. I do not consider the correspondence between the Applicant and Ms Lisek at that time, when read as a whole, supports this contention. Further, I accept the evidence from Ms Lisek that she was simply closing off the email dialogue being had at the time. Read in context, I am satisfied Ms Lisek’s email did just that.
I am, however, satisfied, despite the protestations of Mr Lisek and Ms Lisek, that the Respondent dismissed the Applicant and that the dismissal was effected by Ms Myers notifying the Applicant in the telephone conversation on 14 July 2023 that the Applicant was not to come in for any of their remaining shifts. The dismissal was confirmed by the request for the return of the Respondent’s keys two days later.
Section 385(c) – Small Business Fair Dismissal Code
As foreshadowed in paragraph [4] above, I am required to address the matter of whether the dismissal was consistent with the Small Business Fair Dismissal Code and the question of whether s.385(c) of the Act applies.
The Respondent asserts that it met the definition of a small business employer at the material time.[10] This has not been disputed by the Applicant[11] and I am satisfied this was the case.
Section 388 of the Act outlines when a dismissal is consistent with the Small Business Fair Dismissal Code:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
The Small Business Fair Dismissal Code (the Code) is set out below:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
The Fair Work Regulations at regulation 1.07(2) provide some guidance as to what constitutes serious misconduct, defining ‘serious misconduct’ as including:
“(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.”
The summary dismissal aspect of the Code provides that it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The proper approach to the construction and application of the summary dismissal aspect of the Code, and its interaction with regulation 1.07, was considered by a Full Bench of the Commission in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman).[12] The Full Bench in Ryman concluded the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07 and summarised its analysis as follows:
“In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”[13]
As to whether the Respondent genuinely held a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal, I accept the evidence of Ms Myers, who formed the view that the Applicant’s conduct was “not on” and that the decision of the Respondent, in the group chat of its managers following the Applicant’s Facebook posting, was that the posting sign-off calling Ms Lisek, Mr Lisek and Laura Simmons ‘cunts’ was inappropriate. That the Respondent considered the Applicant’s posting “inconsistent with the continuation of the contract of employment” is demonstrated by the outcome of the Respondent’s manager’s group chat that Ms Myers, who was co-Manager of the Respondent’s bar, would call the Applicant and ask them not to come in for any remaining shifts. Both Ms Lisek and Mr Lisek, the Respondent’s co-owners, were aware that Ms Myers was going to telephone the Applicant. These circumstances demonstrate to my satisfaction that the Respondent believed the Applicant’s admitted posting in the Respondent’s staff Facebook chat was sufficiently serious to justify immediate dismissal.
The Code also requires an employer’s belief to be based, objectively speaking, on reasonable grounds. In this case, I am satisfied the Respondent’s belief was so based. The Applicant admits to having called Ms Lisek, Mr Lisek and Laura Simmons ‘cunts’ in the Respondent’s staff Facebook chat. This was a wilful and deliberate act by the Applicant and I do not accept the Applicant’s proposition that they were no longer an employee at that point because, as I have already found, I am satisfied there was a dismissal when Ms Myers notified the Applicant in the telephone conversation on 14 July 2023 that the Applicant was not to come in for any of their remaining shifts.
I am therefore satisfied that the dismissal of the Applicant was consistent with the Code (s.396(c) and s.385(c)) of the Act) and on that basis, my conclusion is that the Applicant was not unfairly dismissed.
Section 385(b) – Harsh, unjust or unreasonable
I have found that the Applicant was dismissed, and that the Respondent complied with the Code. For completeness, I have also concluded, having regard to s.385(b), that the Applicant’s dismissal was not harsh, unjust or unreasonable. My reasons for this conclusion are set out below.
Section 387 of the Act sets out the criteria for determining whether a dismissal was harsh, unjust or unreasonable:
“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.”
Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct? – s.387(a)
I am not persuaded by the Applicant’s contention that they were notified of their dismissal by the email Ms Lisek sent at 20.18 hours on 13 July 2023. As outlined in [25] above, I accept the evidence from Ms Lisek that she was simply closing off the email dialogue being had at the time.
The Applicant admitted describing Ms Lisek, Mr Lisek and Laura Simmons as ‘cunts’ in the Respondent’s staff Facebook chat. At the time this descriptor was posted, the Applicant was still an employee. The descriptor followed the Applicant outlining, for all other staff members to see, their grievances with Ms Lisek and Mr Lisek, co-owners of the Respondent. Without explanation, the Applicant also directed the slur at Ms Simmons, one of the Respondent’s bar managers. I am satisfied this wilful and deliberate behaviour directed at the management and ownership of the Respondent was inconsistent with the continuation of the Applicant’s contract of employment and was therefore serious misconduct constituting a valid reason warranting summary dismissal.
Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – ss.387 (b) and (c)
Notification of a valid reason for termination should be given to an employee protected from unfair dismissal, before the decision is made,[14] in explicit terms,[15] and in plain and clear terms.[16] In Crozier v Palazzo Corporation Pty Ltd[17] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
I have had regard to the fact that the Applicant was notified of the dismissal without prior warning and was not given an opportunity to respond to the reason for the dismissal before it was made.
Unreasonable refusal by the employer to allow a support person – s.387(d)
This consideration is irrelevant on the facts of this case. In any event, there was no unreasonable refusal by the Respondent to allow the Applicant a support person for the discussion relating to the dismissal and nor has any such refusal been alleged.
Warnings regarding unsatisfactory performance – s.387(e)
This consideration is not a factor in this case because the Applicant was dismissed for serious misconduct.
Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
The Respondent is a small business employer within the meaning of s.23 of the Act and without dedicated human resource management specialists or expertise. I am satisfied the Respondent’s size impacted on the procedures adopted in effecting the dismissal and that the absence of dedicated human resources management specialists or expertise also impacted on the procedures followed in effecting the dismissal. The material and evidence before me suggest the Respondent is devoid of sophistication when it comes to human resource management and processes. It may aspire to be well-meaning but, in this case, the Respondent exhibited a glaring lack of knowledge of how to go about things procedurally.
Other relevant matters – s.387(h)
The Applicant was engaged over a 15-month period. I have noted that shortly prior to the Applicant’s dismissal, the Respondent raised issues of performance with the Applicant relating to matters occurring earlier in the employment relationship. They were conveyed in written communication expressed as being a “formal warning letter”. The Applicant did not accept the premise of the warning and, independently, expressed frustration at the Respondent’s manner of communication. I make no findings either way on issues of performance, save that I note this is not an employment relationship where the parties would agree there was an absence of issues prior to the dismissal.
The Applicant gave notice they were leaving. They exercised their rights as a casual employee to not be available to work for a 7-week period owing to an overseas trip. Upon return, they had an expectation of work for a three-week period before exercising their right to altogether cease accepting offers of work from the Respondent. The Applicant desired work until their chosen time of departure. The Applicant became frustrated when informed 5 weeks into their 7-week absence that the Respondent’s circumstances had become such that the overall amount of work the Respondent was able to offer amongst all staff was diminishing. Things then went downhill.
However, whatever view one takes of any limitations Ms Lisek and Mr Lisek may or may not have exhibited as business managers, I do not accept any suggestion that the Applicant’s choosing to describe them (and Ms Simmons) as “cunts” in the Respondent’s staff Facebook chat was justified. This deliberate act was calculated and did not need to occur. The Applicant had a choice. There was no obligation on the Applicant to work any further hours for the Respondent. They could have elected to work the remaining hours on offer on the terms outlined by the Respondent or, equally, as a casual employee, they could have elected not to work any further engagements and ceased immediately. Instead, the Applicant chose to direct a wholly disrespectful slur towards the owners of the Respondent and its manager in a public manner by describing Ms Lisek, Mr Lisek and Ms Simmons as “cunts” in the Respondent’s staff Facebook chat. This warranted immediate dismissal and its seriousness outweighs any suggestion of procedural deficiency on the part of the Respondent.
Having considered and weighed the matters arising in relation to s.387(h) of the Act, I do not find that they are sufficient to render the Applicant’s dismissal harsh, unjust or unreasonable.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act as relevant and given each due weight in determining whether the termination was harsh, unjust or unreasonable.[18] I am satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable. Accordingly, I find that the Applicant’s dismissal was not unfair. As outlined above, I am also satisfied that the dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code and on that basis, my conclusion is that the Applicant’s dismissal was not unfair.
An Order[19] dismissing the unfair dismissal application made by Reema Saad in U2023/6598 will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
R Saad, Applicant
M & S Lisek for the Respondent
Hearing details:
2023.
Melbourne:
October 25.
[1] Court Book, page 72-73.
[2] Court Book, page 7.
[3] Ibid.
[4] Court Book, page 8.
[5] Court Book, page 9.
[6] Ibid.
[7] Court Book, pp 161-163.
[8] Witness Statement of Reema Saad, page 64 of Court Book.
[9] Court Book, page 64.
[10] An employer is small business employer at a particular time if the employer employs fewer than 15 employees at that time (s.23 of the Fair Work Act2009).
[11] Court Book, page 41.
[12] [2015] FWCFB 5264.
[13] Ibid at [41].
[14] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[15] Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
[16] Ibid.
[17] (2000) 98 IR 137, 151.
[18] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[19] PR768290.
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