Richard Morgan v Serco Australia Pty Limited t/a Serco Immigration Services
[2018] FWCFB 7011
•26 NOVEMBER 2018
| [2018] FWCFB 7011 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Richard Morgan
v
Serco Australia Pty Limited t/a Serco Immigration Services
(C2018/5675)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2018] FWC 5835 of Commissioner Williams at Perth on 27 September 2018 in matter number U2018/4615.
Introduction and background
[1] Mr Richard Morgan has lodged an appeal, for which permission to appeal is necessary, against a decision issued by Commissioner Williams on 27 September 2018 (Decision). 1 That Decision concerned Mr Morgan’s application, made pursuant to s.394 of the Fair Work Act 2009 (FW Act), for an unfair dismissal remedy in relation to the termination of his employment with Serco Australia Pty Ltd (Serco) on 16 April 2018. The Commissioner determined that Mr Morgan’s dismissal was not harsh, unjust or unreasonable, and dismissed his application. Mr Morgan contends in his appeal that the Commissioner erred in a number of respects, which we will detail later in this decision.
[2] The factual background to this matter is as follows. Serco holds a contract with the Department of Immigration and Border Protection to provide security services with respect to persons detained by the Department. Mr Morgan was employed by Serco in 2012 as a Detainee Services Officer (DSO) at the Perth Immigration Detention Centre, which houses high risk detainees who have been refused visa extensions or have had their visa cancelled on character grounds. Under Serco’s contract with the Department, it was required to provide security escorts for persons being removed from Australia, which in general terms involved detainees being transported to the airport, escorted through immigration control, being placed on the relevant international flight, and escorted throughout the flight to the destination and until the detainee is received by officials of the country of destination. A 21-page Policy and Procedure Manual for International Removals (PPM) sets out Serco’s requirements for the proper conduct of international removals.
[3] Mr Morgan’s position description as a DSO included requirements for him to act as an escort on international removals and to perform the role of Team Leader in doing so. Over the course of his employment he had conducted numerous international removals as Team Leader without apparent difficulty. Mr Morgan was tasked to conduct as Team Leader the international removal of a detainee, who was voluntarily departing for Albania, on 29 January 2018. The detainee the subject of the removal had been assessed as having a high risk of escape, had been diagnosed with Bipolar Affective Disorder, had previously been admitted involuntarily into a psychiatric facility, had been reported to have a “short fuse” and had engaged in previous incidents of self-harm. Mr Morgan was assigned three other officers to assist with the removal, of which two were to accompany him on the flight.
[4] The detainee was successfully transported to Albania as planned via Qatar Airways. However a complaint was made by Qatar Airways to the Australian Border Force concerning an attempt by one of the escorts to access the Qantas Lounge at Perth Airport and to remove food and beverage items from the lounge. This complaint was forwarded to Serco management, who then suspended Mr Morgan from aviation escort duties and commenced an investigation into what had occurred. The subsequent investigation disclosed a number of matters beyond the scope of the original allegation, and on 23 February 2018 Mr Morgan was sent a letter informing him that he was required to attend a disciplinary meeting on 28 February 2018 to answer nine allegations concerning his conduct in relation to the international removal which occurred on 29 January 2018. Mr Morgan attended the meeting, but without a support person because of a dispute concerning the particular person he wished to accompany him. After the meeting the Serco management concluded that each of the nine allegations was made out, and a decision was made to terminate Mr Morgan’s employment. After Mr Morgan declined to attend a meeting scheduled for 16 April 2018 to inform him of the outcome of the disciplinary process, a letter was sent to him that day informing of his dismissal. The letter identified the following instances of conduct on 29 January 2018 as constituting the reason for his dismissal:
“• You failed to properly review and discuss, as part of the escort briefing, the Detainee's Security Risk Assessment (SRAT) and other documents relating to the escort which resulted in the removal of a high risk detainee not being conducted in accordance with the assessed risk and written instructions;
• As team leader you gave permission to DSO Terito to enter the Qantas lounge to obtain refreshments resulting in the escort being compromised. This action also resulted in an altercation between DSO Terito and a Qantas lounge staff member;
• You behaved inappropriately and unprofessionally in your interactions with the Airport Services Duty Officer for Qatar Airlines following this altercation;
• You allowed the Detainee to visit the ATM and money changer, and to access his valuables at the Perth International Airport despite instructions that detainees are only to be handed their trust property on arrival at their final destination. In doing so you also allowed the escort formation to be broken;
• You failed to declare in the Transit/Discharge Form as well as the Escort Operational Order that the bag containing the detainee's valuables was opened and the seal broken at Perth Airport;
• You allowed the escort formation to be broken on a number of occasions, including removing yourself during the escort, which is contrary to the requirements to maintain formation;
• You breached Serco's procedures by driving the escort vehicle to the airport whilst also being in the role of team leader, contrary to the policies relating to international escorts;
• You failed to report the issues encountered with airport staff to the WA Regional Command as well as in the Escort Removal Report.”
The Decision
[5] In the Decision the Commissioner set out in detail the evidence adduced in the matter and, relevant to the conduct allegations made against Mr Morgan, stated two matters of significance. The first was that Mr Morgan’s own evidence largely did not challenge the factual basis of the allegations concerning his conduct on 29 January 2018, but rather raised matters of mitigation and context. 2 The second was that the evidence supported each of the allegations against Mr Morgan contained in the dismissal letter except one, namely that Mr Morgan had behaved inappropriately and unprofessionally in his interactions with the Airport Services Duty Officer for Qatar Airlines.3 The Commissioner found that the evidence did not support a conclusion that Mr Morgan had behaved in this way.4
[6] The Commissioner summarised Mr Morgan’s submissions concerning why his dismissal was unfair. A significant aspect of his submissions was identified as follows:
“[111] Mr Morgan variously submitted that he could not be expected to fully comply with the Respondent’s policy and procedure manual because it is overly legalistic and complex, he received no adequate training and he had never seen the document prior to the disciplinary meetings.”
[7] In his consideration of Mr Morgan’s case, the Commissioner made a number of key findings. First he rejected Mr Morgan’s submission concerning his alleged lack of knowledge of the PPM, and found:
“[130] Mr Morgan had been provided with a copy of the Policy and Procedures Manual for International Removals. He had undertaken training and other educational sessions such as toolbox talks that concerned elements of Serco’s policy and procedure for escorts and which made particular reference to the Policy and Procedure Manual for International Removals.
[131] Mr Morgan was at all times able to access Serco’s various policy and procedures on its intranet.”
[8] The Commissioner went on to find that:
● Mr Morgan continued to downplay the risk posed by the detainee in the hearing despite the evidence to the contrary; 5
● allowing the detainee to use the ATM and visit a money changer, which was Mr Morgan’s decision, increased the risk of the detainee successfully escaping, and there was unchallenged evidence that the account given by Mr Morgan about this incident was inconsistent with the accounts of the other three escorts; 6
● Mr Morgan’s non-compliance with Serco’s policies and procedures was more fundamental than could be justified and so excused by his employer; 7
● while other Serco escorts may not have fully complied with Serco’s policies in the past, there was no evidence that this was known to Serco let alone condoned by it such as to excuse Mr Morgan’s failures to comply with policies and procedures; 8
● Serco’s policies and procedures emphasised the taking of steps to reduce the risk of a detainee escaping, and securing detainees protected the safety of Serco’s employees and the general public; 9 and
● the argument that the non-compliance with policies and procedures in this case was not serious because the detainee was well-behaved disguised the seriousness of the risks such failures created. 10
[9] The Commissioner dealt with all the matters he was required to take into account under s 387 of the FW Act. In relation to s 387(a), the Commissioner found that Mr Morgan’s multiple breaches of Serco’s policies and procedures constituted a valid reason for his dismissal. As to s 387(b) and (c) the Commissioner found that Mr Morgan had been afforded procedural fairness, and in relation to s 387(e) he found that Mr Morgan had not previously received any unsatisfactory performance warnings. In relation to s 387(h), the Commissioner’s consideration was as follows:
“[155] Mr Morgan is 55 years old and at the time of his dismissal had been employed for over seven years.
[156] Mr Morgan made a number of submissions to the effect that he has suffered differential treatment compared to others. There is however not sufficient evidence regarding all the facts and circumstances of other examples for the Commission to properly draw any conclusion regarding these other examples.
[157] Whilst Mr Morgan admits that some of his actions were contrary to the policies and procedures of Serco he does not accept that there was a valid reason for his dismissal. Mr Morgan acknowledges Serco’s concerns and that the complaints against him are serious but continues to deny all the allegations made against him.
[158] Mr Morgan has shown no contrition and little insight into his actions.
[159] Mr Morgan’s refusal to accept the wrong doing on his part or acknowledge the requirements on him to comply with the policies and procedure excluded consideration by Serco of alternative disciplinary action short of dismissal.”
[10] The Commissioner then concluded:
“[160] Mr Morgan believes he was right to exercise his judgement during the international escort to depart from Serco’s policy and procedures as he did and believes he should not be sanctioned for this.
[161] Mr Morgan does not willingly accept his obligations as an employee to comply with Serco’s policy and procedures.
[162] Considering all of these circumstances the dismissal of Mr Morgan cannot be said to be harsh, unjust or unreasonable.
[163] Mr Morgan has not been unfairly dismissed.”
Appeal grounds and submissions
[11] Mr Morgan’s notice of appeal and his submissions in support of his application for permission to appeal contend that the Decision was attended by appealable error in the following respects (noting that the following is a summarisation of the grounds of appeal and the numbering does not precisely correspondent to that used in the notice of appeal):
(1) The Commissioner had found that Mr Morgan had viewed or had access to the PPM based on evidence that was lodged late, giving him no time to review the evidence or provide a considered response, including providing witness statements that he and other staff had not seen the PPM and had limited access to the “g drive” where it was located on the intranet.
(2) The Commissioner wrongly relied upon evidence of knowledge of the PPM based on toolbox talks in circumstances where he did not obtain information on how such talks are conducted, accepted that signed attendance sheets represented an understanding of the information, treated Mr Morgan’s lack of knowledge of his attendance as meaning that he did attend, did not acknowledge that one attendance sheet contained forged signatures (including his own), and concluded that Mr Morgan’s reference to the PPM at the disciplinary meeting was proof that he had knowledge.
(3) There was no exploration of the issues of differential treatment.
(4) The Commissioner failed to address the disparity between Serco’s loss of trust and confidence in Mr Morgan and the fact that he was allowed to continue in his role as DSO for 10 weeks including conducting high risk escorts.
(5) The issue of Mr Morgan’s submission of an application for an order to stop bullying was not addressed.
(6) The Commissioner acknowledged that Serco breached its own policies and procedures but held Mr Morgan to a higher standard of scrutiny.
(7) The Commissioner overlooked the importance of the standard practice of handing over all valuables of high risk removals at the airport departure lounge contrary to the PPM.
(8) The Commissioner failed to address performance based issues.
(9) The Commissioner failed to address Mr Morgan’s exemplary record.
(10) Mr Morgan was not part of the initial escort commencing from the detention centre, and a support officer was not supplied for the initial escort from the detention centre.
[12] Mr Morgan identified a number of public interest grounds to support his application for permission to appeal, a number of which had the character of further grounds of appeal. In summary, Mr Morgan contended that (using our own numbering):
(1) The Decision manifested an injustice and a denial of procedural fairness, and was counter-intuitive, and the legal principles were disharmonious with other recent decisions.
(2) There was a denial of a fair hearing because a Serco HR representative had said to a DSO that a DSO “was at the bottom of the food chain”, and Mr Morgan should not have felt that way when attending the Commission.
(3) In a separate matter before the Commissioner in 2017 involving Mr Morgan and Serco, Mr Morgan had witnessed the Commissioner say that Serco “was a good company”, which demonstrated bias and a lack of impartiality.
(4) Serco did not file its Form F3 response to Mr Morgan’s application within the prescribed 7 days or within a reasonable time, and also refused to engage meaningfully or responsibly in conciliation.
(5) Serco submitted a supplementary statement the day prior to the hearing, claiming that it was not aware that Mr Morgan contended that he had not seen the PPM despite this being clearly stated in his initiating application. Mr Morgan was denied the opportunity to reasonably review and respond to it by way of the provision of further witness statements.
(6) The hearing was initially set for three days, but was subsequently reduced to one day, which caused Mr Morgan to reduce his prepared presentation of his case including the calling of witnesses and to feel under pressure to wrap up his cross-examination of Serco’s witnesses.
(7) Mr Morgan was denied procedural fairness in relation to his position with respect to the PPM.
(8) Serco submitted fraudulent evidence but was not held to the same level of scrutiny as Mr Morgan was.
(9) Having regard to Mr Morgan’s unblemished record of service, and his poor prospects of finding further employment, the circumstances of the incident should have been investigated more thoroughly.
Consideration
[13] An appeal under s.604 of the FW 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. 11 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[14] This appeal is one to which s.400 of the FW Act applies. 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.
[15] In the Federal Court Full Court decision 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 as “a stringent one”. 12 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.13 In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 14
[16] 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. 15 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.16
[17] 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. 17
[18] A number of matters concerning the Decision, and the grounds of Mr Morgan’s appeal against the Decision, must be noted from the outset. First, the Commissioner’s determination of Mr Morgan’s application was entirely orthodox: he made findings of fact on the basis of the evidence before him, considered all the matters required to be taken into account by s 387, and applied standard legal principles in reaching his conclusion that the dismissal was not unfair. Second, the Decision was made on the basis of the particular facts of Mr Morgan’s case, which did not raise any issue that was novel or had any wider implications. Third, Mr Morgan’s appeal does not seek to challenge the critical findings in the Decision - in particular, that Mr Morgan had, with one exception, engaged in the conduct on 29 January 2018 that was alleged against him; that he did not demonstrate any contrition for or insight into his conduct; and that his refusal to accept any wrongdoing on his part or to acknowledge the requirement to comply with Serco’s policies and procedures precluded Serco from applying any disciplinary sanction short of dismissal. These are all matters which strongly militate against the grant of permission to appeal.
[19] We have considered the grounds which Mr Morgan has advanced as justifying the grant of permission to appeal in the public interest. As to ground (1), 18 for the reasons already stated we do not consider that the Decision was counter-intuitive or involved any disharmonious application of legal principle. We will return to the alleged denial of procedural fairness shortly. Grounds (2) and (4) do not raise any matter relevant to the appeal process. In relation to ground (3), there was no application at first instance for the Commissioner to recuse himself on the grounds of apprehended or actual bias, we have not been taken to any evidence that the Commissioner made the alleged remark, and in any event we do not consider that if the remark was made it could reasonably be taken as demonstrative of any lack of impartiality on the part of the Commissioner with respect to Mr Morgan’s later unfair dismissal remedy application. The import of ground (8) is obscure, and it is also unclear what ground (9) means when it suggests that the Commissioner should have investigated the 29 January 2018 incident more thoroughly. We consider that the Commissioner did give thorough consideration to that incident based on the evidence before him.
[20] Grounds (5), (6) and (7) in substance allege a denial of procedural fairness. This appears to be alleged in two respects. The first is that the Commissioner admitted into evidence a further statement of evidence made by Paul Moss, an employee relations manager for Serco, that was only filed and served the day before the hearing. This statement concerned the issue of whether Mr Morgan had seen or had access to the PPM before 29 January 2018. Mr Morgan’s contention is that he did not have time to properly review this statement or obtain witness statements in response to it.
[21] The relevant circumstances pertaining to the admission of the late statement made by Mr Moss are, in summary, as follows. In his application for an unfair dismissal remedy, Mr Morgan alleged that he did not see the PPM prior to the initiation of the disciplinary process against him. However his witness statements and written submission lodged in accordance with the Commission’s standard directions for the hearing did not address this contention or provide any evidence to support it. To the contrary, Mr Morgan’s written submission addressed in detail the specific requirements of the PPM. We consider therefore that Serco might reasonably have understood from Mr Morgan’s witness statements and submissions that he did not intend at the hearing to press the contention that he had not seen the PPM.
[22] On 23 July 2018, eight days before the hearing, the Commissioner by consent of the parties conducted a conciliation conference in an endeavour to settle the matter, and at this conference Mr Morgan again contended that he had not seen the PPM prior to the disciplinary process. It was this that caused Serco to seek to address the issue by way of the further witness statement from Mr Moss.
[23] The Commissioner’s decision to admit the statement into evidence was a discretionary procedural one, and we do not consider that there is an arguable case that it was not reasonably open to him to admit the statement given its obvious relevance to what turned out at the hearing to be a significant aspect of Mr Morgan’s case. Although it is not expressly raised in Mr Morgan’s notice of appeal or submissions, there may be a question as to whether the Commissioner should have made some adjustment to the hearing process, such as the grant of an adjournment, in order to ensure that Mr Morgan had a fair opportunity to respond to the new witness statement. However Mr Morgan did not ask for an adjournment. On our perusal of the transcript he was able to raise in his cross-examination of Mr Moss the issues which he had with his further statement, and to do so as effectively as might be expected from a self-represented litigant. Although in theory he could have called witnesses in reply to Mr Moss’s further statement had he had more time to respond, he did not seek this opportunity before the Commissioner. Mr Morgan’s first ground of appeal, earlier set out, contends that he could have provided witness statements to the effect that he and other staff had not seen the PPM and had limited access to the “g drive” where it was located on Serco’s intranet. However given that it was Mr Morgan who was contending that he had not seen the PPM before, he should have called evidence to support that proposition in the witness statements he filed in accordance with the Commission’s directions but, as already stated, the six witness statements he filed (consisting of his own and those of five other current or ex-Serco staff members) make no mention of the matter. Further, Mr Morgan accepted in his evidence that he had access to the “g-drive”, 19 as the Commissioner found.20
[24] The second alleged denial of procedural fairness was that the truncation of the listed hearing from three days to one day compelled Mr Morgan to call fewer witnesses than he otherwise intended and to truncate his cross-examination. In relation to the former proposition, on 18 June 2018 Mr Morgan filed witness statements made by himself and four others, namely Daniel Pavlovic, Martin Langshaw, Muhammed Nasir and John Louie. On 26 June 2018 Mr Morgan filed a further statement of Amandeep Singh. Mr Morgan also filed two character references. On 30 July 2018 Serco confirmed in writing that it wished to cross-examine all of Mr Morgan’s witnesses. At the hearing on 31 July 2018, Mr Morgan called Mr Pavlovic and Mr Louie to give evidence, and their statements were admitted into evidence and they were subject to cross-examination. The transcript discloses that Mr Morgan then sought the admission of the other witness statements and character references, even though the witnesses were not in attendance and could not be cross-examined. 21 In response to a question from the Commissioner, his explanation as to why they were not in attendance was as follows:
“MR MORGAN: Two of the statements were character references. I didn't consider they needed to be backed up because they're simply character references, what I'd use for job applications or whatever, I decided to include that. I decided to include that for reasons there's no ill feelings, whatever. The stat decs, I wasn't - they were witness. They're not essential. I do understand they hold less weight. I hope they will be accepted as an indication of what occurs. I do accept the officers aren't here to give full weight to it but they're indications of past practice and events but I accept there'd obviously be less weight put to those statements.” 22
[25] There was no indication in that explanation that the additional witnesses were not in attendance because of any pressure felt by Mr Morgan as a result of the shortening of the listed hearing from three days to one day. The Commissioner ultimately determined that he would not admit the witness statements and character references into evidence. 23 In relation to Mr Morgan’s capacity to cross-examine Serco’s witnesses, there is no indication in the transcript that this was truncated in any way.
[26] We are not satisfied therefore that there was any denial of procedural fairness of a nature that would justify the grant of permission to appeal in the public interest.
[27] We are not satisfied that any of Mr Morgan’s substantive grounds of appeal give rise to any reasonably arguable case of appealable error. Grounds (1) and (2) 24 raise the issue of Mr Morgan’s prior knowledge of the PPM. The Commissioner was entitled to accept the evidence of Mr Moss in this regard. Mr Morgan submitted in support of his application for permission to appeal that his purported signature on an attendance sheet for a toolbox talk on 3 October 2105 concerning “Enhanced Escort Position”, annexed to Mr Moss’s further statement, is not genuine. A cursory perusal of the document in question certainly supports that submission. However that does not diminish Mr Moss’s evidence that Mr Morgan had not mentioned at all the contention he had not seen the PPM before during the disciplinary process, that Mr Morgan had, according to Serco’s records, been provided with a copy of the PPM in July 2016, that it was accessible at all relevant times on Serco’s intranet, and that Mr Morgan had undertaken training in domestic and international aviation support in July 2016.
[28] In relation to the other grounds of appeal:
● Ground (3) discloses no challenge to the Commissioner’s conclusion that there was insufficient evidence concerning Mr Morgan’s examples of alleged differential treatment to enable a proper comparison to be drawn.
● Ground (4) is not arguable given that Serco was conducting a disciplinary process which allowed for a proper investigation of the incident and a procedure which sought to afford procedural fairness to Mr Morgan.
● The application for an order to stop bullying referred to in ground (5) was not relevant to the Commissioner’s determination of the unfair dismissal remedy application before him.
● The import of grounds (6), (7), and (8) is not self-evidently clear but in any event they do not involve any identifiable challenge to the key findings made by the Commissioner or give rise to any issue which would attract the public interest.
● In relation to ground (9), the Commissioner took into account Mr Morgan’s prior employment record in paragraphs [153] and [155]. That he did not give this matter the weight that Mr Morgan would have preferred it be given does not give rise to an arguable case of appealable error.
● Ground (10) points out that in paragraph [55] of the Decision there may be a minor factual error in that it was a different Mr Morgan who acted as escort on the first road component of the removal of the detainee. However none of the conduct matters which constituted the reasons for Mr Morgan’s dismissal occurred at this stage of the removal. Accordingly the alleged error was irrelevant to the Commissioner’s conclusions and could not constitute a significant error of fact for the purpose of s 400(2).
[29] For the reasons stated, we are not satisfied that the grant of permission to appeal would be in the public interest. Therefore, in accordance with s 400(1), permission to appeal must be refused.
VICE PRESIDENT
1 [2018] FWC 5835
2 Decision at [104]
3 Decision at [108]-[109]
4 Decision at [110]
5 Decision at [133]
6 Decision at [135]-[136], [138]
7 Decision at [141]
8 Decision at [142]
9 Decision at [144]
10 Decision at [146]
11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
12 (2011) 192 FCR 78 at [43]
13 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
14 [2010] FWAFB 5343, 197 IR 266 at [27]
15 Wan v AIRC (2001) 116 FCR 481 at [30]
16 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
18 Using our numbering in paragraph [12]
19 Transcript 31 July 2018 PNs 178-185
20 Decision at [131]
21 Transcript 31 July 2018 PNs 831-832
22 Transcript 31 July 2018 PN 836
23 Transcript 31 July 2018 PNs 842-843
24 Using our numbering in paragraph [11]
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