Reliable Petroleum Pty Ltd v Mr Fraser Murray
[2017] FWCFB 5843
•8 NOVEMBER 2017
| [2017] FWCFB 5843 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decision
v
Mr Fraser Murray
(C2017/4410)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 8 NOVEMBER 2017 |
Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July 2017 in matter number U2017/1796 - test for harshness - permission to appeal granted - appeal dismissed.
[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has applied for permission to appeal and appealed a decision of Commissioner Hampton issued on 20 July 2017 1 (Decision).
[2] The application for permission to appeal and the appeal were heard on 21 September 2017. At the hearing, Mr Mark Douglas of counsel appeared with permission for Reliable Petroleum and Mr Edward Lawrie of the Transport Workers’ Union appeared for Mr Murray.
Decision
[3] Mr Murray was employed by Reliable Petroleum as a fuel tanker driver in and around Adelaide from October 2015 until his dismissal on 3 February 2017. Mr Murray was dismissed following an investigation into an incident that occurred on 5 December 2016 in which Mr Murray was recorded by a fixed speed camera located on the South Eastern Freeway travelling down from the Adelaide Hills at 88km per hour in a 60km per hour speed zone.
[4] The Commissioner found that there was a valid reason for Mr Murray’s dismissal and there were no concerns about procedural unfairness. However, having regard to a range of “other matters” under s.387(h) of the Fair Work Act 2009 (Cth) (Act), the Commissioner found that Mr Murray’s dismissal was harsh and unreasonable and he ordered that Mr Murray be reinstated without any backpay.
Permission to appeal
[5] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[6] Section 400 of the Act applies to this appeal. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[7] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[9] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9
[10] We are satisfied that it is in the public interest to grant permission to appeal in this matter. We are of the view that the appeal, insofar as it concerns the concept of harshness, raises important questions of general application. Accordingly, we grant permission to appeal in relation to grounds 1.1 and 2 of Reliable Petroleum’s Amended Notice of Appeal, but refuse to grant permission to appeal on the balance of the appeal grounds, for the reasons set out below.
Grounds of Appeal
[11] The grounds of appeal relied on by Reliable Petroleum 10 fall into four categories:
(a) First, the Commissioner incorrectly considered and applied the concept of harshness as that term is defined in s.385 of the Act;
(b) Secondly, the Commissioner acted outside of the jurisdiction of the Commission, by in essence purporting to provide declaratory relief, or by treating the Commission’s reasons as akin to declaratory relief, in relation to and in support of its findings;
(c) Thirdly, various findings of the Commissioner were not open to him on the available evidence and the Commissioner did not give sufficient weight or consideration to critical evidence and admissions which supported the contentions of Reliable Petroleum; and
(d) Fourthly, the order for reinstatement was not supported by the available evidence, nor was it appropriate in the circumstances.
Harshness conclusion (Grounds 1.1 and 2)
[12] Reliable Petroleum contends that the Commissioner ought to have found that for the termination to be “harsh” within the meaning of s.385 of the Act, it would have required the Commissioner (based on the facts both agreed by consent and led by way of oral and tendered evidence) to find that the termination of employment was outside the reasonable and lawfully available spectrum of responses available to Reliable Petroleum. In support of this contention, Reliable Petroleum relies in part on Walton v Mermaid Dry Cleaners Pty Ltd 11, particularly the notion that it is not the Commission’s function to stand in the shoes of the employer and decide whether or not the decision made by the employer was a decision that would be made by the Commission.
[13] Walton v Mermaid Dry Cleaners was decided by Justice Moore in 1996, sitting in the Industrial Relations Court of Australia. Mr Walton claimed compensation in respect of what he contended was an unlawful termination under the Industrial Relations Act 1988 (Cth) (IR Act). One of the grounds of unlawfulness alleged by Mr Walton was that the termination of his employment was not for a valid reason. At that time, s.170DE of the IR Act was in the following terms:
“(1) An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
(2) A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.”
[14] Justice Moore made the following findings in relation to Mr Walton’s conduct:
• Mr Walton was a long term employee in a dry cleaning business. New owners came into the business and instructed him to prepare plant and equipment maintenance records for the plant and equipment used in the dry cleaning business. Mr Walton declined to do so on the basis that he had looked after the plant and equipment in the business for about 20 years and he did not see the need to “put down on paper” maintenance records. His Honour stated that he understood how an employee such as Mr Walton who had been working in a business for 35 years might have views about the appropriate way of conducting the business and may need to be persuaded that some change was necessary. However, his Honour was satisfied that Mr Walton’s attitude, while understandable, was a matter to which the employer was entitled to pay regard in deciding whether to terminate his employment; and
• Mr Walton was obliged in his supervisory role to inform his employer of any matter concerning another staff member that might lead the other staff member to terminate their employment with the employer. Mr Walton was aware that another long standing and valued employee was dissatisfied with her employment with Mermaid Dry Cleaners but he did not inform his employer. Justice Moore held that the employer was entitled to rely on this conduct on the part of Mr Walton.
[15] Justice Moore’s conclusion in relation to whether there was a valid reason for the termination of Mr Walton’s employment was as follows (at 685):
“…Mr Walton had, and I repeat, probably for understandable reasons, a view about the way the business should be conducted, but that did not accord with the view of Ms Harris as to how the business should be conducted. The discord between those respective views resulted in a circumstance where the employer was entitled to adopt the view that the conduct of Mr Walton was such that his services could be terminated. In my opinion, the evidence does establish that the employer had a valid reason for terminating the employment of Mr Walton. I should, however, make plain - and this had been made plain in many cases decided by this court - that it is not the court’s function to stand in the shoes of the employer and decide whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct, and in these proceedings I have concluded it did.”
[16] It is clear from the foregoing analysis that the statement made by Justice Moore in Walton v Mermaid Dry Cleaners concerning standing in the shoes of the employer related to the question of whether there was a valid reason for the dismissal connected with the employee’s capacity or conduct. Justice Moore did not make the statement concerning standing in the shoes of the employer in relation to any assessment as to whether the termination of employment was harsh.
[17] Further, the test posited by Reliable Petroleum for harshness, namely the dismissal must be outside the reasonable and lawfully available spectrum of responses available to the employer in order to be harsh, is contrary to established authority. The question of whether a dismissal is “harsh” involves the exercise of discretion. 12 The discretion is broad and is constrained only by the requirement to take into account the matters specified in s.387(a) to (h) of the Act, including any matters the decision-maker considers to be relevant (s.387(h)).13 Ultimately, the determination of whether a dismissal is “harsh” requires the making of a broad evaluative judgment by the decision-maker.14
[18] We reject the submission made by Reliable Petroleum that the test posited by it for harshness is supported by the following sentence in a decision by the Full Bench in DP World Sydney Limited v Lambley: 15
“Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.”
[19] This observation by the Full Bench relates to whether a dismissal is unjust or unreasonable, not whether it is harsh. In many cases the three concepts of harsh, unjust and unreasonable will overlap, but they are different and may give rise to different findings. 16 In Byrne,17 Justices Gummow and McHugh discussed two senses in which a dismissal may be “harsh”. In particular, their Honours discussed the notion that a dismissal may be “harsh it its consequences for the personal and economic situation of the employee” or “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[20] In addition, the observation by the Full Bench in DP World Sydney Limited v Lambley concerning “unreasonableness or injustice” does not, in our view, establish a “decision rule”. 18 It remains necessary in each case for the decision-maker to have regard to all relevant circumstances and make a value judgment as to whether the dismissal was harsh, unjust and/or unreasonable.
[21] In an appeal from a discretionary decision such as whether a dismissal was “harsh”, an appellate tribunal is only authorised to set aside the decision if error has been demonstrated on the part of the decision-maker. Error must usually be of one of the types identified in House v The King. 19 It is not enough that the appellate tribunal would have decided the discretionary decision at first instance in a different way. Error of the requisite kind must be demonstrated.20
[22] We do not accept Reliable Petroleum’s contention 21 that the Commissioner had regard to an irrelevant consideration by finding, and placing emphasis on, the fact that Mr Murray appeared to slow down after the speed camera. The findings made by the Commissioner in relation to this issue were that “Mr Murray’s truck was above the speed limit for approximately ten seconds at the point of the speed camera and he was travelling at the correct speed within a further 20 seconds or so”.22 These findings were relevant to the nature and extent of the misconduct in which Mr Murray engaged; they bore upon the gravity of the conduct and had to be weighed in the mix in according both parties a fair go all around and forming a judgment about whether the dismissal was harsh in all the circumstance.
[23] In our view, the Commissioner took into account relevant matters, did not allow extraneous or irrelevant matters to guide or affect him, did not act on a wrong principle, and did not mistake the facts. Nor was the Commissioner’s evaluative judgment that the dismissal was “harsh” unreasonable or plainly unjust. The Commissioner weighed the gravity of the misconduct in which Mr Murray engaged against a range of matters 23 and concluded that his dismissal was “in the context of all the circumstances” harsh and unreasonable.24 We do not accept Reliable Petroleum’s contention that the misconduct engaged in by Mr Murray was “so serious, so sufficiently grave, and that the actual or potential consequences to the Appellant were and are potentially so serious, that a finding of harshness cannot be a reasonable finding open to the Commission”.25 Having regard to all the relevant circumstances, we consider it was open for the Commissioner to form the value judgment that Mr Murray’s dismissal was harsh. It is not enough that an appellate tribunal such as this Full Bench would or might have arrived at a different conclusion.26
[24] There is one further matter upon which we wish to make some observations in relation to this appeal insofar as it concerns the Commissioner’s finding that Mr Murray’s dismissal was harsh. In oral argument, 27 counsel for Reliable Petroleum made reference to, and relied on, paragraph [80] of the Decision, in which reference was made to the following part of the Full Bench’s decision in Parmalat Food Products Pty Ltd v Mr Kasian Wililo (Parmalat):28
“[24]… The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[25] Justice Buchanan, with whom Chief Justice Alsop and Justice Siopis agreed, considered this issue in Harbour City Ferries:
“[100] Statements of principle often serve a useful and legitimate function. They provide a body of appellate guidance against which to test suggestions of error in future cases. They cannot substitute for, or alter, a statutory prescription but they are not jurisdictionally flawed unless they are given (or assume) the status of a ‘rule’ or are general pronouncements not related sufficiently to the facts of the particular case (see, by way of example of the principle in the exercise of federal appellate judicial discretion, Wong v R[2001] HCA 64; (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [83]). It is arguable that the statement in Parmalat which I set out earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broad evaluative task assigned by the FW Act using the principles I have discussed of ‘a fair go all round’.”
[26] We agree with these observations by Justice Buchanan. 29 The statute does not require the finding of “significant mitigating factors” to justify a conclusion that a procedurally fair dismissal for a valid reason was harsh. Whether any particular dismissal is “harsh” requires the decision-maker to consider all the relevant circumstances and make a broad evaluative judgment.30
Declaratory relief
[27] Grounds 1.2 and 1.3 of the Amended Notice of Appeal relate to Reliable Petroleum’s contention that the Commissioner acted outside his jurisdiction by purporting to issue legal determinations in the nature of a declaratory judgment, rendering the entire original decision invalid. Reliable Petroleum contends that the purported declaratory relief formed the basis on which the Commissioner reached his decision as to harshness and remedy.
[28] After finding that Mr Murray’s dismissal was harsh and unreasonable, the Commissioner considered the question of remedy and concluded that reinstatement of Mr Murray was appropriate. 31 One the arguments made by Reliable Petroleum against reinstatement was that it would give rise to a risk of future adverse publicity for Reliable Petroleum. The Commissioner addressed this submission in paragraph [109] of the Decision:
“[109] To the extent that the risk of future adverse publicity for Reliable Petroleum is relevant to this discretion, the Commission has made an objective assessment about the conduct of Mr Murray and of the future risk associated with his reinstatement. Further, the factors mentioned immediately above represent a significant practical sanction which demonstrates that the conduct has not been condoned in any sense.”
[29] Reliable Petroleum contends that the Commissioner erred by finding that its concerns in relation to exposure to adverse publicity, as a consequence of Mr Murray’s reinstatement, were answered or addressed by virtue of the Commission’s publication of its reasons in the terms given. The reasons themselves, so it is contended by Reliable Petroleum, are thereby elevated wrongly to the status of a relevant consideration which influenced the Commissioner’s exercise of his discretion as to the relief granted.
[30] Reliable Petroleum also contends that:
(a) In paragraph [105] of the Decision the Commissioner states “[it was] satisfied that Mr Murray could return to productively [sic] and appropriately perform the duties of a heavy vehicle driver … His long history as a driver and the absence of any incidents before or after the speeding incident are strong indicators that Mr Murray will not ‘reoffend’.” It is alleged this finding was not open to the Commission on the available evidence, was speculative, was apparently intended to operate in the nature of a declaration, and was declared on the basis that Reliable Petroleum’s reputation would not be adversely affected or harmed;
(b) In paragraph [106] of the Decision the Commissioner states that “reinstatement will not have the negative consequences feared by Mr Conti”. It is alleged this finding was not open to the Commissioner on the available evidence, was speculative in all the circumstances (including the admission by Mr Murray that he effectively had no justification for the misconduct) and was apparently intended to operate in the nature of a declaration;
(c) In paragraph [108] of the Decision the Commissioner states “the safety culture [of Reliable Petroleum] will not be undermined” by Mr Murray’s reinstatement. It is alleged this finding was not open to the Commission on the available evidence, was speculative, was not a particular matter raised or agitated during proceedings, and was apparently intended to operate in the nature of declaration; and
(d) In paragraph [109] of the Decision the Commissioner states that he “has made an objective assessment about the conduct of Mr Murray in the future risk associated with his reinstatement”. It is alleged this finding was contrary to the available evidence, was speculative, and was apparently intended to operate in the nature of a declaration.
[31] We are not persuaded there is an arguable case of error in relation to grounds 1.2 - 1.3 of the Amended Notice of Appeal. There is no dispute that the Commission, as an arbitral body, cannot grant declaratory relief. 32 However, we are not persuaded there is an arguable case that the Commissioner purported to issue legal determinations in the nature of declarations. The Commissioner was required to determine whether reinstatement was an appropriate remedy. In so determining, the Commissioner was required to, and did, make appropriate findings in relation to whether a sufficient level of trust and confidence could be restored to make the relationship viable and productive, including the likelihood of certain conduct being repeated in the future and the risk of future adverse publicity for Reliable Petroleum. The Commissioner also gave reasons to support his findings.
Significant errors of fact
[32] Grounds 1.4 and 1.5 of the Amended Notice of Appeal allege a range of serious errors of fact and failure to have regard to relevant matters. These matters were also addressed in Reliable Petroleum’s written and oral submissions. 33
[33] We have considered these grounds of appeal and the written and oral submissions made in support of them. We are not persuaded they disclose an arguable case of error.
[34] One of the alleged errors in these grounds of appeal is that the Commissioner’s findings fail to express, and by implication such matters were not given appropriate consideration by the Commissioner, critical evidence tendered by Reliable Petroleum and accepted by Mr Murray, that go directly to the seriousness of Mr Murray’s conduct, including the particulars or the nine different procedures, regulations, contracts, industrial instruments and Acts of Parliament that Mr Murray contravened through gross inadvertence. There is no dispute that Mr Murray was exceeding the speed limit by 28km/hour at the time he drove past the speed camera. The Commissioner assessed Mr Murray’s conduct to be “a serious oversight in all of the circumstances” and “a serious breach of his various duties as a driver”. 34 That the Commissioner did not set out in the Decision the terms of the nine different duties or obligations Mr Murray contravened by driving at 28km/hour more than the speed limit does not, in our view, amount to an arguable case of error. The Commissioner plainly understood and appreciated the gravity of Mr Murray’s misconduct, and weighed it together with all the other relevant circumstances in forming his evaluative judgment that the dismissal was harsh and unreasonable.
Reinstatement
[35] Ground 3 of the Amended Notice of Appeal concerns the order for reinstatement made by the Commissioner. Reliable Petroleum contends that:
(a) the order for reinstatement was not supported by the available evidence, nor was it appropriate in the circumstances;
(b) the Commissioner erred in so far as he conflated his findings as to Reliable Petroleum’s concerns as to trust and confidence with the appropriateness of reinstatement. In particular, Reliable Petroleum’s concessions, given in evidence, to the effect that reinstatement could be accommodated from an operational perspective, are, so it is submitted, a different consideration as to whether the misconduct was serious enough to irretrievably destroy the requisite relationship of trust and confidence. The latter consideration is a question of law. The former consideration was a question of operational practicality; and
(c) the Commissioner erred in not finding that the conduct of Mr Murray was of sufficient gravity so as to render reinstatement an inappropriate remedy.
[36] We are not persuaded any of the arguments made by Reliable Petroleum in relation to the Commissioner’s finding that reinstatement was appropriate disclose an arguable case of error. The Commissioner approached the question of reinstatement in an orthodox manner, applied the correct principles, had regard to relevant considerations including whether a sufficient level of trust and confidence could be restored to the employment relationship to make it viable and productive, did not take into account irrelevant considerations, and did not mistake the facts. No arguable case of error has been made out in relation to the Commissioner’s exercise of discretion to order that Mr Murray be reinstated, consequent upon the finding that his dismissal was harsh and unreasonable.
[37] Save for grounds 1.1 and 2 of the Amended Notice of Appeal, the other grounds of appeal relied on by Reliable Petroleum do not attract the public interest. In addition to those other grounds of appeal not disclosing an arguable case of error, they do not raise issues of importance or general application, there is not a diversity of decisions at first instance that require guidance from an appellate tribunal, the Decision at first instance does not manifest an injustice, nor is the result counter intuitive, nor do the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[38] For the reasons set out above:
(a) permission to appeal is granted in relation to grounds 1.1 and 2 of the Amended Notice of Appeal;
(b) otherwise permission to appeal is refused; and
(c) the appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Douglas, counsel,with Mr M Kay, solicitor,for the appellant.
Mr E Lawrie for the respondent.
Hearing details:
2017.
Melbourne (via Video Link):
September 21.
Written submissions:
Appellant’s Submissions dated 31 August and 28 September 2017.
Respondent’s Submissions dated 15 September 2017.
1 [2017] FWC 3552
2 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78; 207 IR 177 (Lawler) at [43]
4 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Lawler at [44] -[46]
5 [2010] FWAFB 5343; (2010) 197 IR 266 (GlaxoSmithKline)
6 Ibid at [27]
7 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Lawler; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 Amended Notice of Appeal dated 31 August 2017; Reliable Petroleum’s written submissions dated 31 August 2017 at [5]
11 (1996) 142 ALR 681 at 685, cited with approval in BHP Coal Pty Ltd v Schmidt [2016] FWCFB 1540 at [9] and Gregory v Qantas Airways Limited[2015] FWC 1154 at [83]
12 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; 321 ALR 224 (Harbour City Ferries) at [86]
13 Mt Arthur Coal Pty Ltd v Goodall[2016] FWCFB 5492 (Goodall) at [40]; B, C and D v Australian Postal Corporation T/A Australia Post at [2013] FWCFB 6191 [41]-[60]
14 Harbour City Ferries at [86] & [107]; Goodall at [40]
15 [2012] FWAFB 4810 at [26]
16 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne) per Gummow and McHugh JJ at 465 [128]
17 At 465 [128]
18 Lambley v DP World Sydney Limited [2013] FCA 4 at [36]-[37]
19 (1936) 55 CLR 499 at 504-5
20 Norbis v Norbis (1979) 144 CLR 513 at 537
21 Reliable Petroleum’s written submissions dated 31 August 2017 at [14]
22 Decision at [30]
23 Decision at [73]-[77]
24 Decision at [77]
25 Reliable Petroleum’s submissions as to further authorities dated 28 September 2017 at [8]; see, also, ground 2 of the Amended Notice of Appeal
26 Gronow v Gronow (1979) 144 CLR 513 at 519
27 This matter was also addressed in Reliable Petroleum’s submissions as to further authorities dated 28 September 2017
28 [2011] FWAFB 1166
29 See, too, the criticism of this purported principle by Justice Katzman in Lambley v DP World Sydney Limited [2013] FCA 4 at [28]-[35]
30 Harbour City Ferries at [86] & [107]; Goodall at [40]
31 Decision at [105]
32 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11]
33 Reliable Petroleum’s written submissions dated 31 August 2017 at [48]-[58]
34 Decision at [58]
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