Zhiguo Hu v Glass Tech Australia Pty Ltd
[2020] FWCFB 3214
•19 JUNE 2020
| [2020] FWCFB 3214 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Zhiguo Hu
v
Glass Tech Australia Pty Ltd
(C2020/3715)
VICE PRESIDENT HATCHER | SYDNEY, 19 JUNE 2020 |
Appeal against decision [2020] FWC 2324 of Deputy President Kovacic at Canberra on 7 May 2020 in matter number U2019/11677.
Introduction and factual background
[1] Mr Zhiguo Hu has applied for permission to appeal a decision issued by Deputy President Kovacic on 7 May 2020 1 (decision). In the decision, the Deputy President dismissed Mr Hu’s application for an unfair dismissal remedy against Glass Tech Australia Pty Ltd (Glass Tech) on the basis that Mr Hu had not been dismissed within the meaning of s 386 of the Fair Work Act 2009 (FW Act). Mr Hu appeals the decision on a number of grounds, including that the decision was attended by significant errors of fact.
[2] On the basis of our consideration that Mr Hu’s application for permission to appeal may adequately be determined without oral submissions, and with the consent of the parties, the appeal has been conducted without holding a hearing and is determined on the papers pursuant to s 607(1) of the FW Act.
[3] The factual background to the matter is as follows. Mr Hu commenced employment with Glass Tech as a glazier in March 2016. Mr Hu was employed pursuant to a contract of employment which provided that he be paid a salary of $54,500 per annum exclusive of superannuation. Clause 10.2 of the contract provided:
“10.2 Your pay takes into account any hours that you are required to work outside of your standard hours of employment. You will not be paid any additional penalty rates, overtime rates, allowances or loadings, unless expressly agreed with the Employer in advance.”
[4] Mr Hu formed the view that Glass Tech was not paying him his contractual entitlements or the minimum entitlements prescribed by the applicable modern award in respect of the night shifts he was required to work. On 15 October 2019, Mr Hu arrived for his rostered night shift, but seems to have left the workplace soon after. There followed an exchange of text messages in the Chinese language on the WeChat platform between Mr Alex Tang, Glass Tech’s Factory Manager, and Mr Hu. At the hearing before the Deputy President, Mr Hu provided a certified translation of these exchanges as follows:
“TANG: Brother Hu, what happened, off work?
HU: I didn’t have dinner at 5:00, having dinner and will get back soon
TANG: No way, at 5:00 the tempering furnace stopped for half an hour what did you do
Don’t let such thing happen in future
Night shift dinner time is 5.30
No matter morning or night shift, no matter if the boss is here or not we work as usual
(image)
White haze is still quite obvious.
…
9:54 pm
HU: I have been working normally
Didn’t take a break at 5.00 you can check the CCTV recording
Morning shift has 15 mins break, does night shift have it
After 6:00 pm night shift should have 20% more night pay than morning shift, does the company pay it or not
9:59 pm
TANG: The questions you asked are really funny, continue working if you think you can, tell the boss if you can’t
5.00pm-5.15pm, rest
9.00-9.30 dinner
Considering your hard work on night shifts, the company will raise your pay to 24 from tomorrow
10.05pm
TANG: When you really deserve the 20% overtime pay, the company will pay you. (not finished)”
[5] Mr Hu interpreted the above exchange as him being dismissed after he claimed that he should be paid a 20% loading for night shift work. Mr Tang’s evidence before the Deputy President was that he was expressing concerns to Mr Hu about his absence from work and the quality of his work.
[6] As a result of what occurred on 15 October 2019 between Mr Hu and Mr Tang, Ms Lily Chen, Glass Tech’s Office Manager, arranged for Mr Hu to come in for a discussion at 2.00pm on 16 October 2019. What was said in the conversation was a matter of factual dispute before the Deputy President. Mr Hu’s evidence was that, from his perspective, the discussion was about his unhappiness with Mr Tang, and that he agreed to return to work if Mr Tang apologised. Ms Chen’s evidence was that she raised concerns that Mr Tang had communicated to her concerning the quality of Mr Hu’s work and his attitude, that Mr Hu raised his grievance about his pay, and that she said that his pay could be increased in the future if he improved the quality of his work.
[7] Mr Hu attended for his rostered night shift later the same day at about 4.00 pm and had a discussion with Mr Tang. What occurred in this discussion was again in dispute. Mr Hu’s version of events was that Mr Tang did not apologise, criticised him for being late, and eventually said: “You stop working, get out”. Mr Tang gave evidence to the effect that he told Mr Hu that he had to make sure that he came to work on time and to improve the quality of his work, to which Mr Hu responded “Well that depends on my mood” (Mr Hu conceded that he said this). Mr Tang said that he then replied: “If you don’t want to work here, you should go to the office and see the boss”. There was no dispute that Mr Hu left the workplace immediately after this conversation and did not return. It does not appear that Glass Tech made any contact with Mr Hu when he did not attend for work in days that immediately followed.
[8] Mr Hu filed his unfair dismissal application on 18 October 2019. In his application, Mr Hu alleged that his dismissal had occurred on 16 October 2019. He described the circumstances of the dismissal as follows: “They don’t pay contract wages, they don’t pay overtime, they don’t pay night shifts. When I asserted my rights, I was verbally dismissed”.
[9] On 21 October 2019, the Commission advised Glass Tech of Mr Hu’s application and the listing of that application for a conciliation conference on 19 November 2019. Ms Chen arranged to have a private meeting with Mr Hu on 22 October 2019 to clarify the situation, but Mr Hu did not turn up to the meeting. He claimed he was concerned for his safety. On 24 October 2019, Ms Chen sent correspondence to Mr Hu stating:
“I write to you to confirm that your employment with Glass Tech Australia has not been terminated and the incident of 16 Nov [sic] 2019 did not result in your dismissal.
We would like you to come back to work on your next scheduled shift on 25 Oct 2019.
Any questions regarding your rate of pay will be discussed internally so that we can resolve this concern.”
[10] Mr Hu responded to this correspondence the same day. His response included the following:
“Based on the fact that you have not paid overtime wages, contract wages and night shift wages for a long time, and on the night of October 15, 2019, when I asked the manager for overtime pay, he informed you to quit. Attached is the screenshot of the conversation.
In the afternoon of the second day, October 16, 2019, I talked with Lily in the office and still did not pay overtime, night shift and contract salary. For the sake of the company, it was busy with business now, but I still promised to come back to work, but I asked the manager to apologize.
After I returned to the workshop, did not wait for the manager's apology, but accused me of late, he did not know that I talk in the office, and asked me to do the night shift, I refused, if you don't pay overtime I am not on the night shift, and he said you go home, I repeat, you said, he said, is what I said. I had to return home.
After waiting at home for one day, the company didn't pay any attention to me and didn't pay me two weeks' salary. I had to appeal to the Fair Work Commission for unfair dismissal on October 18, 2019.
. . .
Based on the current situation, we should wait for the result of conciliation. If I go back to work now, it will be very dangerous for my personal safety and working condition. In addition, you refuse to pay the contract pay and overtime pay, why I am go back? I am afraid of retaliation from the employer and the manager.
For the above reasons, I am unable to return to work at the time stated in your company's notice. Please wait for the final result of Fair Work Commission and Fair Work Ombudsman.”
[11] In its response to Mr Hu’s application, Glass Tech contended that it had not dismissed Mr Hu and consequently the Commission had no jurisdiction to entertain the application.
Statutory framework
[12] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four matters, the first of which (in paragraph 385(a)) is that “the person has been dismissed”. Section 386(1) defines “dismissed” in the following terms:
(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.
[13] The above definition operates subject to a number of exceptions in s 386(2), none of which are relevant to the circumstances of the present case.
The decision
[14] In the decision, the Deputy President summarised the evidence and submissions of each party. In addition to his own evidence, Mr Hu provided witness statements made by Mr PingHua Zhai and Mr Zhihang Jiang, who were both former employees of Glass Tech. They were not required for cross-examination. The Deputy President said in relation to these witnesses:
“[20] Mr Zhai deposed in his witness statement that he had worked for the Respondent for three months but left as the Respondent “never pays overtime and contract salary.” Mr Zhai further deposed that the Respondent only paid those employees with working visas less than their contracts and that Mr Chen often chided employees, especially those on working visas.
[21] Mr Jiang deposed in his witness statement 6 that he had worked for the Respondent for five years and that he was not paid overtime, despite working overtime almost every day. Mr Jiang further stated that he had applied for unfair dismissal.
[22] While I note Messrs Zhai’s and Jiang’s evidence, it does nothing to assist the Commission in determining whether Mr Hu was dismissed by the Respondent.”
[15] The Deputy President then stated the following factual conclusions:
“[31] In this case, Mr Hu contends that he was dismissed by Mr Tang on 16 October 2019 when Mr Tang said words to the effect “[y]ou stop working, get out”. However, Mr Tang disputes that he said this to Mr Hu and in his witness statement set out his version of the conversation with Mr Hu on 16 October 2019 (see paragraph [26] above). On this issue, I prefer Mr Tang’s evidence for two reasons. First, in his oral evidence Mr Hu agreed that he did say words to the effect of “depends on my mood” on 16 October 2019 when Mr Tang spoke to him about being late and the need to be careful about glass hazing. This is consistent with Mr Tang’s version of events. Second, in his oral evidence Mr Hu attested that aspects of his response of 24 October 2019 to Ms Chen were incorrect as he was confused about the dates. Specifically, Mr Hu attested that the third paragraph of his response referred to the event of 15 October 2019 as opposed to 16 October 2019. However, the reference in that paragraph to “[a]fter I returned to the workshop, did not wait for the manager's apology, but accused me of late, he did not know that I talk in the office” is consistent with both Mr Hu’s and Mr Tang’s regarding their conversation on 16 October 2019. As a result, I have reservations about the reliability of Mr Hu’s evidence.
[32] More broadly, drawing on the language in Mohazab, there is nothing before the Commission that points to any act on by the Respondent which resulted directly or consequentially in the termination of Mr Hu’s employment. To the contrary, the material before the Commission points to Mr Hu having voluntarily ceased working for the Respondent. In particular, I refer to Mr Hu’s response of 24 October 2019 to Ms Chen in which he stated he refused to do the night shift and to Ms Chen’s correspondence of 24 October 2019 in which she both confirmed that he had not been dismissed and asked him to return to work on 25 October 2019. Further Mr Hu’s evidence that he could not return to work because he feared for his safety suggests that he ceased working for the Respondent of his own accord as opposed to having been terminated.”
[16] The Deputy President found that Mr Hu was genuine in his belief that he was being underpaid, but he did not make any finding as whether Mr Hu was in fact being underpaid and said that if was being underpaid, this did not mean he was dismissed at Glass Tech’s initiative. 2 The Deputy President then said:
“[35] Finally, I do not accept Mr Hu’s contention that the Respondent’s failure to contact him after 16 October 2019 and before he filed his unfair dismissal application on 18 October 2019 confirmed that he had been dismissed by Mr Tang on 16 October 2019. My main reasons for not accepting that contention is the absence of any compelling probative evidence to support Mr Hu’s contention and Ms Chen’s and Mr Tang’s clear and consistent evidence that Mr Tang did not have the authority to dismiss employees.
[36] The above analysis does not support a finding that Mr Hu was dismissed by the Respondent but rather that he left work because he was upset with Mr Tang and believed that he was being underpaid.”
[17] On the basis that Mr Hu was not dismissed within the meaning of s 386, the Deputy President determined that his application was incompetent, and ordered that it be dismissed.
Appeal grounds and submissions
[18] Mr Hu’s notice of appeal contained the following grounds of appeal:
“1. The Respondent submitted their submissions past the due date, I raised my objection and the deputy president did not respond. This was unfair to me.
2. Before the hearing, the deputy president Kovacic hold a conciliation meeting for us, but he hung up the phone before the meeting was over. He was biased against me.
3. At the hearing, I didn't understand the Respondent's statements because of the language, when I asked to translate, although there was an interpreter, the deputy president refused. This affects my final statement.
4. When the deputy president Kovacic make the Decision ([2020]FWC2324), he didn't check the evidence and submissions that I submitted, It's unfair to me that he didn't judge objectively. (Attachment "significant errors of fact")
5. In conclusion, the Decision([2020]FWC2324) was totally not fairly reflect the objective facts, its ignored much of the evidence submitted by the applicant, and made an unjust decision.”
[19] The asserted significant errors of fact set out in the notice of appeal were as follows:
“1. On [2020] FWC 2324 Decision [34] "while his pay slip for the period 2 to 15 October 2019 cites his hourly rate of pay as $29.58 per hour.14 This is not to say that Mr Hu was not in fact underpaid relative to the Award."The deputy president did not check my evidence carefully, The evidence that I submitted shows they just pay me less than $24 per hour. Even the evidence shows the Respondent didn't pay me more than10 hours per fortnight without informing me. If I didn't calculate the working hours I didn't know it until now.
2. On [2020] FWC 2324 [19] “Mr Hu in his evidence also disagreed with the propositions that all that occurred on 16 October 2019 was that he got upset and went home and that he was making up the story of fearing for his safety to cover up why he had not returned to work after 16 October 2019.”
The deputy president said "he was making up the story of fearing for his safety" My evidence that submitted shows my family received threaten message, I already reported to the police, I have the key evidence to prove that the threaten is my boss did and the police is investigating, I have the Police case number and evidence. Because of this, my family moved out to another city, I am very worried my family and me safety. Why the deputy president say that?! Why the deputy president did not to check the evidence.
3. On [2020] FWC 2324 [22] “While I note Messrs Zhai’s and Jiang’s evidence, it does nothing to assist the Commission in determining whether Mr Hu was dismissed by the Respondent.” The evidence from my colleagues is to prove that we did not get the wages as the contract., include me, the boss often bullying us, include me, the company is exploiting us, include me. Also, Mr Jiang's evidence to prove Mr Tang can fire anyone in the workshop. Why the deputy president do not accept.
4. On [2020] FWC 2324 Decision [35] "My main reasons for not accepting that contention is the absence of any compelling probative evidence to support Mr Hu’s contention and Ms Chen’s and Mr Tang’s clear and consistent evidence that Mr Tang did not have the authority to dismiss employees." I can provide more evidence to prove my contention. Moreover, Ms Chen's statement almost lying and I already proved. Why Deputy President believe her. Mr Tang is the company supervisor, he is working there, his statement is not to be believed.
5. In conclusion, the deputy president ignored much the evidence I submitted and chose the evidence in favor of his Decision, which was not objective and unfair. More in my appeal book.” [sic] 3
[20] The notice of appeal did not set out any reasons as to why it would be in the public interest to grant permission to appeal.
[21] Mr Hu raised a diverse range of matters in his written submissions, including that:
• the text message exchange showed that Mr Tang had the authority to increase wages, which was ignored in the decision;
• his evidence concerning revenge from Glass Tech if he returned to work was misstated in the decision;
• the statement in paragraph [19] of the decision that “Mr Hu in his evidence also disagreed with the propositions that all that occurred on 16 October 2019 was that he got upset and went home and that he was making up the story of fearing for his safety to cover up why he had not returned to work after 16 October 2019” was incorrect for a range of identified reasons;
• the Deputy President ignored the key point in Mr Jiang’s statement that Mr Tang had the power to dismiss employees;
• the Deputy President preferred the evidence of Mr Tang, but Mr Tang was lying;
• there was no evidence that Mr Hu voluntarily ceased to work for Glass Tech;
• Mr Hu’s evidence that he could not return to work because he feared for his safety did not suggest that he left his employment voluntarily;
• Glass Tech alleged it had not dismissed Mr Hu, but stopped paying his salary;
• the evidence showed that Glass Tech was underpaying Mr Hu and was “cooking books”, and he was in fact paid only $22.00 per hour and worked more hours than the records indicated;
• Ms Chen had lied about being a small business, Mr Tang’s authority to dismiss employees and Mr Hu’s rate of pay; and
• the decision ignored the evidence, was not logical or objective, and constituted a substantial injustice.
[22] Mr Hu submitted that it would be in the public interest to grant permission to appeal because:
“1. The right to fair work is protected by the law in Australia,
2. Within the framework of the law, fair work should be everyone's right,
3. Work should be paid for and in a safe and fair environment,
4. It is unfair to make a decision in ignored so much evidence,
5. All are equal before the law.
6. My colleagues suffered the same situation as me, Mr Zhihang Jiang also applied for unfair dismissal, his Matter Number(s): U2020/2036. If the Applicant do not grant permission for appeal, this allows the Respondent to continue to exploit my colleagues.
7. It is will be substantial injustice would result if permission is refused.” [sic]
Consideration
[23] 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.4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[24] 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.
[25] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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
[26] 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
[27] 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 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[28] Despite the wide range of issues raised in Mr Hu’s appeal, the issue required to be determined by the Deputy President was a very narrow factual one. Mr Hu contended that he was dismissed on 16 October 2019 when Mr Tang allegedly said to him “You stop working, get out”. Mr Tang denied saying this. The Deputy President found that Mr Hu’s evidence was not reliable and preferred the evidence of Mr Tang.
[29] We are not satisfied that Mr Hu has advanced any reasonably arguable case of error with respect to this finding. In paragraph [31] of the decision, which we have earlier set out, the Deputy President identified two reasons for his conclusion that the evidence of Mr Tang was to be preferred. The first was that, in cross-examination, Mr Hu had conceded that most of what Mr Tang had said in his witness statement about the conversation which occurred on 16 October 2019 was correct (although Mr Hu had not disclosed these matters in his earlier “Applicant Outline of Submissions” of 22 February 2020, which was actually in the nature of a witness statement). The second was that he did not accept Mr Hu’s evidence that the third paragraph of his letter of 24 October 2019 (set out above) was concerned with the events of 15 October and not 16 October 2019. The significance of this is that in this paragraph of the letter, Mr Hu said that Mr Tang told him “You go home” following Mr Hu saying that he would not work the night shift if he was not paid overtime, rather than simply “You stop working, get out”. Mr Hu’s appeal grounds and submissions advance no plausible contention as to why the Deputy President was not entitled, on the basis of these obvious inconsistencies in Mr Hu’s evidence, to prefer the evidence of Mr Tang.
[30] To this might be added three matters. The first is that the Deputy President had the advantage of seeing and hearing Mr Hu and Mr Tang give their evidence in its entirety, and we can detect no suggestion in any of Mr Hu’s appeal materials that the Deputy President misused this advantage in reaching the conclusions on the witnesses’ credibility that he did.
[31] The second is that there is an additional matter which is significantly damaging to Mr Hu’s credibility which the Deputy President might have referred to but did not. Mr Hu alleged, in addition to what occurred on 16 October 2019, that Mr Tang had also dismissed him in the text message exchange on 15 October 2019 after he raised his grievance with his pay (with Mr Hu agreeing with Ms Chen to return to work the following day subject to an apology from Mr Tang). However, the text messages provide no support for this whatsoever. The translations provided by Mr Hu show that Mr Tang contacted Mr Hu because he had left the workplace. After Mr Hu raised his concern about not being paid a 20% loading on night shift, Mr Tang said “...continue working if you think you can, tell the boss if you can’t”. Mr Tang went on to say that the company would “raise your pay to 24 [presumably meaning $24.00 per hour] from tomorrow”. That is, far from dismissing him, Mr Tang said he would receive a pay rise the following day. Mr Hu’s interpretation of this event is patently not credible.
[32] The third matter is that Mr Hu has not suggested, at first instance or on appeal, that the words Mr Tang said he used in the conversation on 16 October 2019 (“If you don’t want to work here, you should go to the office and see the boss”) constituted a dismissal.
[33] The other matters raised in Mr Hu’s grounds of appeal are not germane to the central issue of fact as to whether Mr Tang dismissed Mr Hu on 16 October 2019 as alleged by Mr Hu. That Glass Tech filed its submissions late has no apparent relevance to the decision. The allegation that the Deputy President hung up the phone at a telephone conciliation conference before the meeting was over has not been substantiated in any way, and in any event could not found a conclusion that the Deputy President was biased against Mr Hu. The further allegation that the Deputy President refused to allow certain statements to be translated by the interpreter at the hearing was likewise not substantiated or particularised, and in any event no connection has been drawn between this and the Deputy President’s findings.
[34] The other contentions of factual error generally deal with matters that are not relevant to the Deputy President’s finding that Mr Tang did not dismiss Mr Hu on 16 October 2019. For example, whether Mr Hu was being underpaid by Glass Tech as he alleged, or whether Glass Tech was falsifying its pay records, or whether Mr Hu was threatened after he had lodged his unfair dismissal application, did not bear upon the question to be determined, and the Deputy President properly declined to make findings about these matters. Insofar as Mr Hu’s appeal grounds and submissions address the relevant issue, he does not identify appealable error in the decision but rather, in substance, seeks that we re-determine this issue ourselves.
[35] The appeal grounds are not reasonably arguable. The appeal does not raise any issue of law or principle since, as earlier explained, the decision was made on the basis of a narrow finding of fact. For these reasons, we are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, permission to appeal is refused as required by s 400(1).
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR720326>
1 [2020] FWC 2324
2 Ibid at [34]
3 Minor corrections to obvious errors in the text have been made for readability.
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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