Stephanie Muir Ridge v Mr Alex Yates
[2025] FWCFB 42
•20 FEBRUARY 2025
| [2025] FWCFB 42 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Stephanie Muir Ridge
v
Mr Alex Yates
(C2024/8500)
| VICE PRESIDENT GIBIAN | SYDNEY, 20 FEBRUARY 2025 |
Appeal against decision [2024] FWC 2973 of Deputy President Dean at Canberra on 11 November 2024 in matter number U2024/6365 – Application for an unfair dismissal remedy – Whether the Deputy President erred in finding that the employee was dismissed – Whether the Deputy President erred in being satisfied that the dismissal was harsh, unjust or unreasonable – No arguable error in factual findings – Not in the public interest for the Full Bench to revisit detailed factual findings made at first instance – No question of principle raised – Permission to appeal refused.
Introduction and outcome
Stephanie Muir Ridge conducts a business known as Intentional Care, which provides NDIS and home care services. She employed Alex Yates in her business, most recently as Director of Operations. An issue arose between them in relation to Mr Yates’ pay. Mr Yates’ pay was increased and there is a dispute as to whether Ms Ridge had agreed to the increase and whether she was aware of Mr Yates’ new rate of pay. Ms Ridge and Mr Yates spoke by telephone on 14 May. After the call Mr Yates sent a text message. Ms Ridge says Mr Yates resigned in the call and the text message further communicated the resignation. Mr Yates says otherwise.
On 4 June 2024, Mr Yates applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy, under s 394 of the Fair Work Act 2009 (Cth) (the Act). Ms Ridge opposed the application on the basis that Mr Yates had not been dismissed and, if he had been dismissed, the dismissal was not harsh, unjust or unreasonable. Deputy President Dean heard the application on 10 October 2024. The Deputy President handed down her decision on 11 November 2024. The Deputy President found that Mr Yates had been dismissed and that the dismissal was harsh, unjust, and unreasonable. She decided that the parties would have a further opportunity to file materials in relation to the question of remedy.[1] Further proceedings in relation to remedy were stood over pending determination of this appeal.
Ms Ridge filed a notice of appeal on 1 December 2024. She seeks permission to appeal, and to appeal, the decision of the Deputy President under s 604(1) of the Act. The grounds she advances allege that the Deputy President erred by finding Mr Yates had been dismissed, and erred by finding that the dismissal was harsh, unjust and unreasonable.
A hearing was held before the Full Bench on 10 February 2025. At the conclusion of the hearing, the Full Bench announced its decision to refuse permission to appeal. An order to that effect was published on the same day. The Full Bench advised that reasons for that decision would be published in due course. These are the reasons for our decision.
Factual background
Ms Ridge employed Mr Yates from 14 March 2023. Shortly after he was employed, he was promoted to Director of Operations.[2] On Mr Yates’ case, the parties agreed that they would become business partners and met with an accountant in September 2023 to discuss the best way to structure the business. There were discussions about forming a partnership, and about forming a company. Mr Yates said the business did not have enough money so he would work at a lower pay rate to allow the business to save the necessary funds.[3]
In cross-examination, Ms Ridge said she referred to Mr Yates as her “business partner.”[4] However, Ms Ridge’s position was that, although there had been some discussions around her partnering with Mr Yates, their working relationship had deteriorated and it had become clear to her that this would not be happening. The parties proceeded on the basis that, when their relationship ended, it remained one of employer and employee.
On 25 April 2024, Ms Ridge told Mr Yates she intended to increase her own weekly pay. The parties met to discuss this the following day.[5] Mr Yates’ evidence was that during the meeting on 26 April 2024, he told Ms Ridge that he did not believe that she was serious about their partnership given that they had been trying to save the money to restructure and set up a company for over a year, and that he believed he had already paid his way into the partnership. As a result, he wanted his pay to be equal to hers.[6] He says she replied with:[7]
“I agree, you’ve paid your way, that’s fine, put your pay up.”
On 3 May 2024, Mr Yates emailed the business’s bookkeeper to say that his last pay had been lower than it should have been. He set out the amount he said he ought to have been paid. He sent a further email to the bookkeeper the same day stating:[8]
“Stephanie is aware of the increase in my pay rate. After she increased her weekly draw to $2500 we agreed I would get the same. It’s been this way for a couple of pays now, I’m guessing Mariana didn’t update the template?”
“Mariana” was Mr Yates’ former partner, and the business’s previous bookkeeper.[9] Mr Yates says he also spoke to Ms Ridge about his pay around this time.[10]
On 13 May 2024, Mr Yates considered his pay had again been short, and that the shortfall in the previous pay had not been rectified. He says that he called the bookkeeper, who told him to speak directly with Ms Ridge.[11] He then called Ms Ridge.
The telephone conversation which took place on 14 May 2024 is the call in which Ms Ridge says Mr Yates resigned. The Deputy President’s decision set out Mr Yates’ account of the call as follows:[12]
“[17] … He then called the Respondent and asked why his pay was short when it was meant to be $2500 per week. He gave evidence that the Respondent denied any agreement about increasing his pay. He said he was shocked and accused her of lying.
[18] He told the Respondent that she had agreed to equal pay and that he wouldn’t continue to work for her for less than she was paying herself, as he “had already paid my own way and was doing the vast majority of the work”. He said she would not be able to run the business on her own, and he couldn’t believe that she would lie about their agreement. He also said it was likely she would lose staff members and she would struggle to run the business if he left. At that point, the Respondent ended the call by hanging up on the Applicant.”
The Deputy President also set out Ms Ridge’s account of the call as follows:
“[27] The Respondent gave evidence that she spoke with the Applicant on 14 May about what she said was a discrepancy in his pay, that being that the Applicant had increased his pay in excess of the $55 per hour that had been agreed. She said the Applicant: “was initially taken aback”, and then went on to state:
“a. He ran the Company and not me;
b. He shouldn’t have to justify being paid more;
c. I was financially irresponsible;
d. I would [sic] be able to do it (run the company) without him”.[28] She gave evidence that the Applicant then said: “I quit! I’m going! I’m going to take the staff with me. They will come with me. You won’t be able to do it without me”.
[29] The Respondent gave evidence that while the Applicant was initially taken aback, his voice changed over the course of the conversation which caused her concern and fear.”
Just after the phone call ended, Mr Yates sent Ms Ridge a text message in the following terms:[13]
“Will be making a report to fair work and contacting a lawyer today. There’s a reason staff talk to me, not you. Good luck doing it by yourself.”
Around an hour later, Ms Ridge posted in the staff WhatsApp group that Mr Yates had resigned.[14] Mr Yates told various staff that this was not the case and that he had not resigned.[15] He continued to perform work in the business. On 16 May 2024, Ms Ridge emailed Mr Yates instructing him not to talk to staff or clients, and not to access any work accounts. [16]
On 20 May 2024, Ms Ridge sent an email to Mr Yates asking him to “[p]lease provide your written resignation”. On 21 May 2024, Mr Yates replied saying:
“I have not resigned from my position with intentional care,
Nor do I have any or do I have any intention of doing so.”
Further communications occurred between the parties in which, among other things, Mr Yates continued to pursue what he regarded as his “missing pay”. On 24 May 2024, Mr Yates sent an email to Ms Ridge asserting:
“I would also like you to explain the current situation. I’m currently fit and willing to work, but you’ve instructed me not to access devices and accounts, and not to communicate with staff or clients, which makes my job somewhat impossible.
When will these restrictions be lifted so that I can resume work?
I would like to note that I object to the fact that you have falsely told staff:
- (initially) that I was on mental health leave
- that I quit
- that my father is of ill health.
Just to list a few.”
As has been mentioned, Mr Yates subsequently lodged an application under s 394 of the Act on 4 June 2024.
Decision of the Deputy President
In considering whether Mr Yates had been dismissed within the meaning of that term as defined in s 386(1) of the Act, the Deputy President referred to Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941; (2017) 217 IR 245 and Gunther v B & C Melouney (t/as Easts Riverside Holiday Park) [2012] FWA 2473. After having set out the evidence of the parties, the Deputy President considered whether Mr Yates had resigned. She found that he had not, and gave reasons for that finding, as follows:[17]
“I am satisfied on the evidence that the Applicant did not resign for the following reasons:
To the extent there is a dispute about what was said in the phone conversation between the parties on 14 May 2024, I prefer the evidence of the Applicant. His actions after this conversation do not support a finding that he resigned at that time.
The text message relied on by the Respondent is ambiguous at best and is explainable for the reasons given by the Applicant in his evidence.
The Applicant continued to perform work between 14 and 16 May until he was directed by the Respondent to cease talking to staff or clients and not to access any work accounts. He would not have continued to work had he resigned.
I am not satisfied that the Applicant unilaterally changed his pay rate above that which had been agreed. I am satisfied that the agreement between the parties, consistent with their intention to be business partners, was that the Applicant and the Respondent would be paid the same amount. I am satisfied that the Applicant would not have resigned given his firm belief as to the agreement between him and the Respondent about becoming a partner in the business.
On 20 May the Respondent sought to have the Applicant confirm in writing that he resigned. The Applicant replied the following day in writing confirming that he had not resigned and had no intention of doing so. There is no evidence that the Respondent sought to clarify this position with the Applicant or reply asserting the Applicant had resigned on 14 May. This supports a finding that the Applicant did not resign.
Finally, I accept the Applicant had put significant work into building the business and entering into a partnership with the Respondent, and would not have simply walked away from this in circumstances where he felt he had already “paid his way” into the partnership.”
The Deputy President indicated that she was satisfied that this was a termination at the initiative of Ms Ridge, and that Mr Yates was dismissed for the purposes of the Act.
Having dealt with the objection that Mr Yates had not been dismissed for the purposes of s 385(a) and being satisfied that s 385(c) and (d) did not apply, the Deputy President turned to consider whether the dismissal was harsh, unjust, or unreasonable for the purposes of s 385(b). The Deputy President dealt with each of the matters set out in s 387 of the Act that the Commission is required to take into account.
As to the question of whether there had been a valid reason for termination, the Deputy President considered Ms Ridge’s assertion that Mr Yates had unilaterally and without permission increased his pay rate, and that this constituted serious misconduct warranting dismissal.[18] The Deputy President made findings as follows:[19]
“[49] I am not satisfied that this occurred. I find that the Applicant and the Respondent had agreed that the Applicant would be paid the same amount as the Respondent. It is clear in the evidence that the Respondent approved payments made to all employees within Xero, the business’ accounting software, including payments made to the Applicant. She clearly approved the payments made to the Applicant that she now disputes. I do not accept the Applicant used his relationship with the former bookkeeper (his former partner) to, in essence, misappropriate funds or engage in fraud. The Applicant’s actions in contacting both the new bookkeeper and the Respondent to dispute his pay are not the actions of someone who has misappropriated funds. He was asserting what he genuinely believed were his pay entitlements.”
The Deputy President also considered and rejected Ms Ridge’s claim that Mr Yates’ post-termination conduct gave rise to a valid reason for termination. The Deputy President concluded:
“[51] I accept the Applicant’s comments about the Respondent were not flattering. The comments included that her staff did not like her or respect her, that she has lied, that clients were unhappy with her, and that she was using business funds to pay for her wedding. Clearly, he was upset about what had occurred. As he described, he felt betrayed by the Respondent and said that never in his wildest dreams did he imagine she would be so dishonest. I am not satisfied, though, that his post-employment comments were serious enough to ground a valid reason for his dismissal in these circumstances.”
Having dealt with the question of whether there had been a valid reason for termination the Deputy President went on to consider the other factors in s 387. She then concluded that she was satisfied that Mr Yates had proven that his dismissal was harsh, unjust, and unreasonable, and therefore unfair.[20] The Deputy President indicated she would provide a further opportunity for the parties to file materials in relation to the question of remedy.
Grounds of Appeal
The notice of appeal contains a discursive critique of the decision of the Deputy President, rather than the identification of discrete grounds of appeal. Having regard to the content of the notice of appeal and Ms Ridge’s subsequent written submissions, it is appropriate to summarise the grounds of appeal as involving assertions that:
1.the Deputy President erred by finding that Mr Yates was dismissed;
2.the Deputy President erred by finding there was no valid reason for termination, in that Ms Ridge says:
3.she had not agreed that Mr Yates’ pay would be equal to hers; and
4.Mr Yates’ post-termination conduct, involving making derogatory comments, gave rise to a valid reason for dismissal.
Submissions of the parties
Appellant
Ms Ridge’s notice of appeal asserts that it would be in the public interest for the Commission to grant permission to appeal on the basis that decisions should be based on the truth. In her submissions, she further argued that it was in the public interest to grant permission to appeal because the decision undermined small businesses’ rights to dismiss employees for valid reasons, raised important questions about the balance between employee protections and employer rights particularly in the context of small business operations, and risked setting a precedent encouraging unsubstantiated allegations to overshadow legitimate reasons for dismissal.
As to the decision that Mr Yates had been dismissed, Ms Ridge submitted that the facts clearly showed that he had resigned, and the Deputy President’s decision was incorrect. She said the Deputy President should have accepted her evidence, rather than Mr Yates’ evidence, in relation to the content of the telephone conversation between them on 14 May 2024.
As to the issue of whether there had been a valid reason for dismissal in connection with Mr Yates’ pay, Ms Ridge submitted she had not been fully aware in relation to Mr Yates’ pay rates, and that she and Mr Yates had not agreed to the rate of pay he claimed. She says he had unilaterally increased his pay rate, and that the Deputy President was wrong to accept his evidence and should have accepted her evidence instead.
As to the issue of Mr Yates making derogatory comments about her or her business, Ms Ridge confirmed in her oral submissions that this allegation related to communications which had taken place after the employment relationship had ended. Ms Ridge submitted the Deputy President had misapplied Fiona Stewart v Sea Change Conveyancing Pty Ltd[2012] FWA 1896, a decision of single member of the Commission in which an employee’s inappropriate conduct towards the employer, and poor work performance, had established a valid reason for termination.[21]
Ms Ridge also submitted that she had acted in accordance with the Small Business Fair Dismissal Code.
Respondent
Mr Yates submitted that Ms Ridge had not identified any errors on the Deputy President’s part, and that the appeal was grounded upon dissatisfaction with the Deputy President’s findings. He argued Ms Ridge had not identified any, or any significant, errors of fact. He argued there was no public interest in the appeal.
Consideration
An appeal under s 604(1) 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.[22] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
As this is an appeal from a decision made under s 394 of the Fair Work Act, it is a decision to which s 400 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.
Section 400(1) dictates that permission to appeal may only be granted if the Commission is satisfied that it is in the public interest to do so. The public interest test is stringent.[23] A would-be appellant will generally need to show there is an arguable case of appealable error.[24] Even where an arguable case is demonstrated, that is not necessarily sufficient to warrant a grant of permission to appeal.[25] The statutory context may be relevant in deciding whether to exercise the discretion to grant permission to appeal, without fettering that decision.[26] In matters where s 400 applies, it will “commonly not be in the public interest to grant permission to appeal where the grounds of appeal, in substance, seek to relitigate the factual findings made at first instance,” and often it will not be in the public interest for a Full Bench to analyse “the primary factual material simply because an appellant alleges that different conclusions should have been drawn from the evidence.”[27]
In substance, Ms Ridge disputes the factual findings made by the Deputy President at first instance. Those findings were made by the Deputy President with the benefit of having seen and heard the witnesses give their evidence. The key issues which arose as to whether Mr Yates was dismissed or had resigned and whether there had been an agreement to increase Mr Yates’ rate of pay were the subject of a direct clash between the evidence given by Ms Ridge and Mr Yates. Put simply, Ms Ridge and Mr Yates gave inconsistent versions of events. Although there were some contextual matters which assisted in resolving the clash in the evidence, the Deputy President ultimately had to determine whether she accepted Ms Ridge’s evidence or that of Mr Yates.
Subject to the question of permission to appeal, a Full Bench is required to conduct a real review of the evidence at first instance and, if it finds that an erroneous factual finding has been made, should “not shrink from giving effect to” its own conclusion.[28] However, findings of fact at first instance will be treated with considerable deference where they involve findings which are likely to have been affected by impressions about the credibility of witnesses formed after seeing and hearing their evidence.[29] In those circumstances, an appellate bench will ordinarily not interfere with the findings unless they are demonstrated to be wrong by reference to “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.[30]
We do not believe Ms Ridge has raised an arguable case of appealable error with respect to the key factual findings made by the Deputy President. For the reasons we briefly set out below, no basis was established upon which the Full Bench could disturb the findings made by the Deputy President. In any event, we do not consider that it is in the public interest for the Full Bench to revisit the factual findings made by the Deputy President on appeal. No issue of principle or general application was raised by Ms Ridge’s appeal which should have attracted a grant of permission to appeal.
Whether Mr Yates was dismissed
The question of whether Mr Yates was dismissed or had resigned involved a consideration of the competing accounts of the telephone call on 14 May 2024 given by Ms Ridge and Mr Yates, and how the subsequent text message should be understood in light of that telephone call. In relation to the telephone conversation, the Deputy President preferred the evidence of Mr Yates. No arguable basis has been established upon which the Full Bench could conclude that the Deputy President was wrong to do so. The Deputy President relied, no doubt, on her impression of the witnesses giving their evidence and, in addition, referred to the subsequent conduct of Mr Yates and Ms Ridge which supported the conclusion that Mr Yates did not resign in the course of the telephone call. The findings were made in an orthodox manner and there is no basis upon which the Full Bench could reach a different view on appeal.
We also do not believe there is any arguable basis to find error in the Deputy President’s assessment that the text message sent by Mr Yates following the telephone conversation on 14 May 2024 was “ambiguous at best”. It is a necessary incident of the employment relationship that the other party must be notified in clear and unambiguous terms if a right to bring the contract to an end is being exercised.[31] Consistently with that principles, an employee will not be found to have resigned unless the employee has clearly communicated an intention to so do to the employer.[32] The text message sent by Mr Yates did not contain unambiguous words conveying an intention to resign and, in our opinion, the Deputy President was correct to find that the text message did not constitute a resignation by Mr Yates.
Whether there was a valid reason for dismissal
Ms Ridge alleged there was a valid reason for dismissal because Mr Yates had increased his rate of pay unilaterally and without permission. The Deputy President found that this did not occur. Again, the issue turned on a direct conflict in the evidence given by Ms Ridge and Mr Yates. Having heard the evidence given by Ms Ridge and Mr Yates and having considered the other conduct of the parties, the Deputy President found that the parties had agreed that Mr Yates would be paid the same amount as Ms Ridge, and that Mr Yates had been asserting what he genuinely believed were his pay entitlements. Ms Ridge simply asserted that the Deputy President should have reached a different conclusion. In circumstances in which the Deputy President had the advantage of seeing the witnesses give their evidence, there is no basis to overturn that finding.
Ms Ridge also relied on what she described as derogatory comments made about her by Mr Yates as constituting a valid reason for dismissal. The Deputy President found that, although the post-employment comments made by Mr Yates were “not flattering”, they were not sufficiently serious to ground a valid reason for dismissal in the circumstances.[33] There was, with respect, a more fundamental problem with Ms Ridge’s reliance on the comments made by Mr Yates in relation to her and the business. Ms Ridge complains about comments made by Mr Yates after the employment ended. Post-employment conduct could not provide a valid reason for dismissal. Although it is open to an employer to rely on matters as constituting a valid reason which were not known to the employer or relied upon when the employer decided to terminate the employment, those matters must have been in existence at the time of dismissal. In Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427, Von Doussa J explained:[34]
“…it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances that were in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances.”
Similarly, having referred to the decision of the High Court in Byrne v Australian Airlines (1995) 185 CLR 410 and various other authorities, the Full Bench explained in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (with respect to the equivalent provisions in the Workplace Relations Act 1996 (Cth)):[35]
“On the basis of the foregoing we are of the view that in determining a s 170CE(1)(a) application the Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was ‘‘harsh, unjust or unreasonable’’, provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.”
At most, post-employment conduct might be relevant to an assessment as to whether reinstatement should be ordered and, perhaps, other remedies. That is a matter still to be considered by the Deputy President and it is not appropriate for the Full Bench to say anything further about it. There is no reason to grant permission to appeal with respect to the allegedly derogatory conduct of Mr Yates after the employment came to an end.
The Small Business Fair Dismissal Code
In her written submissions on appeal, Ms Ridge referred to the Small Business Fair Dismissal Code. This issue is not raised in the notice of appeal, and it does not appear that it was raised before the Deputy President. The Deputy President found that s 385(c) of the Act did not apply.[36] Ms Ridge has not provided any basis to demonstrate an arguable case that that finding was made in error.
Conclusion
Ms Ridge has not demonstrated an arguable case of appealable error. She primarily argues the Deputy President should have drawn different conclusions from the evidence and seeks to relitigate factual issues. Further, the appeal does not raise any issue of significance or general application. Contrary to Ms Ridge’s submissions, the decision did not undermine the basis upon which employers can dismiss employees, nor does it raise questions about the balance between employee protections and employer rights or allow unsubstantiated allegations to overshadow legitimate reasons. The decision turned on findings of fact specific to the matter, which the Deputy President made after seeing and hearing the evidence being given.
Accordingly, the Full Bench ordered that permission to appeal was refused.
VICE PRESIDENT
Appearances:
S Ridge appeared for herself.
A Yates appeared for himself.
Hearing details:
Sydney (by video):
10 February 2024
[1] Yates v Stephanie Muir Ridge[2024] FWC 2973.
[2] Ibid, [6].
[3] Ibid, [10]-[11].
[4] Ibid, [10].
[5] Ibid, [12].
[6] Ibid, [14].
[7] Ibid, [14].
[8] Ibid, [15].
[9] Ibid, [15].
[10] Ibid, [16].
[11] Ibid, [17].
[12] Ibid, [17]-[18].
[13] Ibid, [7].
[14] Ibid, [8].
[15] Ibid, [22]-[23].
[16] Ibid, [24].
[17] Ibid, [38].
[18] Ibid, [48].
[19] Ibid, [49].
[20] Ibid, [68].
[21] Ibid, [58].
[22] Opal Packaging Australia Pty Ltd v Pece Calovski[2025] FWCFB 16 at [72]; applying Coal and Allied Operations Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ).
[23] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [43] (Buchanan J).
[24] Opal Packaging Australia Pty Ltd v Pece Calovski[2025] FWCFB 16 at [72]; applying Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].
[25] Opal Packaging Australia Pty Ltd v Pece Calovski[2025] FWCFB 16 at [72]; applying GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, at [26]-[27]; (2010) 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].
[26] Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [40].
[27] Ibid.
[28] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ).
[29] See, for example, Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd [2025] FCAFC 12 at [53] (Nicholas, Jackson and Rofe JJ).
[30] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] (Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ).
[31] Geys v Societe Generale, London Branch [2013] 1 AC 523 at [57]-[61] (Baroness Hale).
[32] See, for example, Moore v LE Stewart Investments Pty Ltd t/as Southern Highlands Taxi Service [2010] NSWIRComm 50 at [81] (Backman J).
[33] Yates v Stephanie Muir Ridge[2024] FWC 2973 at [51].
[34] Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 (Von Doussa J).
[35] Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.
[36] Yates v Stephanie Muir Ridge[2024] FWC 2973 at [41].
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