Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2015] FWC 779] of Commissioner Cloghan at Perth on 26 March 2015 in matter number U2014/285.

[1] Ms Louise Nesbitt has applied for permission to appeal a decision of Commissioner Cloghan issued on 26 March 2015¹ (Decision). The Decision concerned Ms Nesbitt’s application for an unfair dismissal remedy in respect of her dismissal by Dragon Mountain Gold Limited (Dragon Mountain - the Respondent).

[2] By way of background, on 12 January 2014 Ms Nesbitt mistakenly sent a text message to Mr Gardner, the Chairman and Managing Director of Dragon Mountain, describing him as “a complete dick”. The text message was intended as a warning for Mr Guy, the boyfriend of Ms Nesbitt’s daughter, who was to undertake some plumbing work at Dragon Mountain’s offices that day. Ms Nesbitt later sent two text message to Mr Gardner, the first asking that he delete her previous text message without reading it and also apologising for that earlier message and the second effectively describing the misdirected text message as “no more than a joke”. There was apparently an incident between Mr Guy and Mr Gardner at the office that day. After that incident, Mr Gardner asked Ms Nesbitt to attend the office and have Mr Guy removed from the premises. Ms Nesbitt attended the office but on the advice of Mr Guy and his colleague did not enter to talk to Mr Gardner. She rang Mr Gardner later that day to explain why she did not meet with him that afternoon. That phone call concluded on the basis that they could discuss the issue the following day when Ms Nesbitt attended work. Ms Nesbitt did not attend work between 13 and 17 January 2014 when she was dismissed with immediate effect for gross misconduct.

[3] In his Decision the Commissioner determined that Ms Nesbitt’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code) and that consequently Ms Nesbitt had not been unfairly dismissed pursuant to s.385(c) of the Fair Work Act 2009 (the Act). At paragraph [54] of the Decision, the Commissioner stated that it was not disputed that Dragon Mountain was a small business, with Mr Gardner and Ms Nesbitt the only employees.

[4] The issue of whether or not permission to appeal should be granted was heard by the Fair Work Commission (the Commission) on 20 May 2015. At that hearing Ms Nesbitt appeared on her own behalf, while Mr Luke Swanson appeared with permission for the Respondent.

The Relevant Statutory Provisions and the Code

[5] The relevant provisions of the Act, ss.385 and 388, are set out below.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[6] The relevant aspect of the Code is also set out below.

“Small Business Fair Dismissal Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.” (Underlining added)

The Grounds of Appeal and Views of the Parties

[7] In her Outline of Submissions regarding the appeal, Ms Nesbitt cited the following reasons as to why it was in the public interest for permission to appeal to be granted:

(1) the decision contains significant errors of fact;

(2) the Commissioner exceeded his jurisdiction by arguing the case for the Respondent;

(3) the hearing and events prior to it lacked procedural fairness;

(4) the decision is counter intuitive;

(5) the Commissioner failed to address the requirement of a “reasonable investigation”; and

(6) matters of general interest, i.e. the Decision manifests an injustice and is defamatory to Ms Nesbitt and it is in the public interest to provide clarity with regard to the context of comments made via electronic media.

[8] We note that these grounds are broader than those cited in Ms Nesbitt’s Notice of Appeal.

[9] In short, Dragon Mountain opposed Ms Nesbitt’s application for leave to appeal and sought an order that permission to appeal be refused as, inter alia, Ms Nesbitt had not advanced any submissions as to why the Commissioner’s conclusion is wrong.

[10] We will deal with the parties’ written and oral submissions in detail below in the context of dealing with the grounds of appeal relied upon by Ms Nesbitt.

Dealing with the Appeal

[11] This appeal is one to which s.400(1) of the Act applies. Section 400(1) 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.

[12] 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”.² The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment³. 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.”4

[13] 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.⁵ 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.⁶

Consideration of the Issues

[14] We turn now to deal with each of the grounds of appeal relied upon by Ms Nesbitt.

Ground 1 – Errors of Fact

[15] In her submissions Ms Nesbitt cited several errors of fact which she considered to impugn the Decision. One of the errors cited by Ms Nesbitt was that the Commissioner described Dragon Mountain’s non-executive directors as third parties whereas Ms Nesbitt contended that they were employees. As a result, the Commissioner’s observation that Dragon Mountain had two employees was wrong. Ms Nesbitt contended that the Respondent had four employees at the time of her dismissal.

[16] Dragon Mountain submitted that an appeal will only be available if the error of fact is a significant error of fact. It further submitted that the factual errors identified are not, on any test, fundamental or substantive and as such did not warrant the Full Bench interfering with the Decision. To that end, Dragon Mountain also submitted that Ms Nesbitt had not demonstrated any significant errors of fact or law.

[17] As noted at paragraph [13] above, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. We have considered the alleged errors referred to by Ms Nesbitt. However, we are of the view that the alleged errors referred to by Ms Nesbitt, whether considered individually or collectively, are not of such significance so as to undermine the basis of the Decision. For instance, whether Dragon Mountain had two or four employees is immaterial in concluding that the Respondent was a small business employer as defined in s.23 of the Act. We would also point to the following exchange between the Commissioner and Ms Nesbitt at the hearing on 15 January 2015 on this issue:

“THE COMMISSIONER: All right, and there's no dispute that there are just two people. At the time of your dismissal there are just two people who are basically running the organisation.

MS NESBITT: That's correct, yes.”⁷

[18] Based on the above, Ms Nesbitt is on appeal describing as an error in the Decision an issue which she appears to have conceded in the proceedings below.

[19] This supports a finding that it would not be in the public interest to grant permission to appeal on this ground.

Ground 2 – Jurisdiction

[20] Ms Nesbitt submitted that the Commissioner exceeded his jurisdiction by arguing the case for the Respondent, including by making crucial and damaging assumptions and interpretations that were not suggested by the Respondent. In support of that submission, Ms Nesbitt referred to the Commissioner’s comments throughout the Decision that the working relationship between Mr Gardner and her had deteriorated, adding that that view relied upon hearsay evidence and was not supported by proof or examples. In her oral submissions, Ms Nesbitt submitted that there had been no reference to a deteriorating relationship between her and Mr Gardner in the proceedings before the Commissioner and referred the Full Bench to paragraphs [82] and [84] of the Decision as examples of where the Commissioner had either exceeded his jurisdiction or was arguing the Respondent’s case.

[21] Dragon Mountain submitted that this ground of appeal did not have any substance.

[22] With regard to the working relationship between Mr Gardner and Ms Nesbitt, we note that Mr Gardner’s evidence included that the working relationship between he and Ms Nesbitt “had deteriorated since about June 2013.” We consider therefore that the observations made by the Commissioner at paragraphs [82] and [84] of the Decision were open to him on the basis of the material and submissions before him. Those observations do not raise any issue of jurisdiction as contended by Ms Nesbitt.

[23] We therefore do not consider that this ground of appeal attracts the public interest.

Ground 3 – Procedural Fairness

[24] Ms Nesbitt submitted that prior to and during the hearing she was denied procedural fairness. In support of that submission, Ms Nesbitt cited several factors. Key among those were her view that on many occasions during the hearing the Commissioner would not allow her to speak and that a witness, Mr Jay Stephenson, was only ordered to appear at the hearing on the evening prior to the hearing. This Ms Nesbitt submitted provided her with little opportunity to prepare her cross examination. In her oral submissions, Ms Nesbitt referred the Full Bench to several passages in the transcript of the proceedings before the Commissioner which she contended demonstrated that the Commissioner had precluded her from speaking.

[25] Dragon Mountain submitted that Commission members are required to accord all parties procedural fairness and while there is a duty for the Commission to provide for a fair hearing that does not require it to provide a positive advantage to a self represented litigant. Further, procedural fairness does not involve the Commission running an applicant’s case for him or her, nor does it require the Commission to ensure that an applicant makes the best use of the opportunity given to him or her to put his or her case. The Respondent submitted that the Appellant was provided the opportunity to cross examine each of the Respondent’s witnesses and to test the alleged fabricated allegations.

[26] One of the passages which Ms Nesbitt submitted demonstrated that the Commissioner would not allow her to speak was the exchange at PN721–774 of the transcript. We set out below extracts of the exchange referred to by Ms Nesbitt.

THE COMMISSIONER: Ms Nesbitt, what do you want to say by closing?

MS NESBITT: Just on the jurisdictional aspect?

THE COMMISSIONER: Put to me what you want to say.

MS NESBITT: I'm happy to not really say much more other than to clarify one point that Mr Swanson said. He said I said I wasn't going to assist with the board packs. I didn't do that. I emailed Jay Stephenson and this is within – there is documentary evidence on file of this. I emailed Jay Stephenson and said I couldn't do them; could he, please, find someone to do them for me? He said, "Yes." He happily said, "Yes." He said, "Can you, please, give me the cash figures for both companies?" I looked up the cash figures; gave them to him; he said, "No worries."

THE COMMISSIONER: What has that got to do with just your normal preparation of the board pack?
...

THE COMMISSIONER: Just tell me why you didn't do it.

MS NESBITT: I didn't do it on this occasion because it would've involved me speaking with Mr Gardner and going into the meeting and I was, frankly, really scared. I didn't want to talk to him. I didn't know what was going on. The directors had refused to speak to me. I was scared and I just – I did what I could to make sure the board meeting went ahead. I did circulate the documents to the directors even though it's been put on record that I didn't. I did what I could and the best I could and, as I said in my statement, it was not a requirement that I was there. There'd never been a requirement that I was there. That's just something that's come to light now.

THE COMMISSIONER: Let me ask you another question. There's no dispute you get paid $95,000 a year.
...

THE COMMISSIONER: Right; and you're getting paid $95,000 and you call him "a complete dick". Do you think that that's appropriate behaviour? Before you answer that I want to put it in this context: if you had people reporting to you and they called you that or something similar to one of your subordinates or a contractor, do you think that that's okay?

MS NESBITT: In the context that I did it - - -

THE COMMISSIONER: Don't talk to me about context.

MS NESBITT: Okay. If I got a random text message that said - you know, I would be upset.
...

THE COMMISSIONER: Immediately after, realising what you have done. I want you to make any closing submission in relation to both the issue of your abandonment of employment and also why you think your dismissal was unfair if I find that you haven't abandoned your employment.
...

THE COMMISSIONER: I need to tell both parties this. It's not my role here to make a decision about what happened between Mr Guy and Mr Gardner. That's not my role. Secondly – and this is aimed at Mr Swanson - it's not my role to infer anything from the questions he put to the witnesses regarding whether they were paid or not or what their expectation is. My role is not to go through and resolve every individual conflict between the parties so spare telling me again about what happened between Mr Guy and Mr Gardner. You said that you were dismissed for what happened on the 12th. Let's just focus on that.

MS NESBITT: The incident outlined in my termination letter had nothing to do with bad performance, nor was I ever told about bad performance.

THE COMMISSIONER: It's not about your performance. It's about your conduct on that particular day, what you did. That's what's not in issue between both parties. That's not in issue.
...

MS NESBITT: Okay. That's it from me, thanks.

THE COMMISSIONER: I don't think that's it.

MS NESBITT: No, I don't have anything else to say; sorry, that's it. (Underlining added)

[27] The above extract shows the Commissioner inviting Ms Nesbitt to make any closing submissions that she might wish to do and secondly asking questions of Ms Nesbitt which go to the issues that he needed to decide, given that one of the issues raised by Dragon Mountain was that Ms Nesbitt had abandoned her employment. While it could be argued that the Commissioner could at times have explained his questions and comments more clearly, the extracts do not support Ms Nesbitt’s submission that the Commissioner precluded her from speaking. We have similarly examined the other passages referred to by Ms Nesbitt in her oral submissions and reached the same conclusion.

[28] With regard to Mr Stephenson’s witness statement, it was filed with the Commission late on the afternoon of 13 January 2015. Ms Nesbitt sent an email to the Commission shortly after 2am on the morning of 14 January 2015 objecting to the late lodgement of the statement. Later that day the Commissioner issued an order requiring Mr Stephenson to attend the hearing on 15 January 2015. Mr Stephenson’s statement is six pages long with eight attachments. In the main those attachments comprise emails and minutes of Dragon Mountain Board meetings. Of note, in her oral submissions before us Ms Nesbitt acknowledged that she agreed to allow Mr Stephenson to give evidence at the hearing. We consider it unlikely that Ms Nesbitt would have been prejudiced in the proceedings, particularly in circumstances where she cross-examined Mr Stephenson at the hearing.

[29] One issue canvassed in the proceedings before us was the seeming inconsistency between the Commissioner’s reference at PN769 of the transcript to Ms Nesbitt’s performance not being an issue and the references at paragraphs [71] and [72] of the Decision to a number of performance related issues. We observe that our reading of the Decision suggests that the Commissioner cited a number of performance related issues as indicative of what he described as the breakdown in the professional relationship between Ms Nesbitt and Mr Gardner. However, at paragraph [73] of the Decision, the Commissioner makes it clear that much of the facts as to what occurred in the lead up to the incident of 12 January 2014 were disputed before he turns to apply the approach identified in the Full Bench decision in Pinawin v Domingo⁸. This was open to him given that the working relationship between Mr Gardner and Ms Nesbitt was in issue before him and does not in our view constitute a denial of procedural fairness by the Commissioner.

[30] The above analysis does not support a finding that Ms Nesbitt was denied procedural fairness. This in turn, does not support a finding that it would be in the public interest to grant permission to appeal on this ground.

Ground 4 – The Decision is Counter Intuitive

[31] In respect of this ground, Ms Nesbitt submitted that the Decision was counter intuitive because the Commissioner had overlooked Dragon Mountain’s reporting obligations as an ASX listed company. Further, the Commissioner failed to consider documents from Mr Keith Platel which supported her view that the quality of her work was not in question. In her oral submissions, Ms Nesbitt contended that it was counter intuitive for an ASX listed company to be protected or covered by the Code.

[32] Dragon Mountain submitted that these considerations were irrelevant concerning the application of s.385 of the Act.

[33] We agree with the Respondent’s submission in this regard. The issue of whether or not Dragon Mountain complied with its reporting obligations to the ASX is a matter for the ASX, not the Commission and is not a relevant consideration for the purposes of s.385(c) of the Act. The reality is that all small business employers covered by the Act and who come within the definition of small business employer as set out in s.23 of the Act are covered by the Code.

[34] Again, this supports a finding that it would not be in the public interest to grant permission to appeal on this ground.

Ground 5 – ‘Reasonable Investigation’ Issue

[35] Ms Nesbitt submitted that the Commissioner failed to address the issue of a reasonable investigation. On this ground, Ms Nesbitt cited the extract in the Decision from British Home Stores Ltd v Burchall [a UK decision cited in Pinawin], contending that in the proceedings below Dragon Mountain made no claim that it had undertaken any investigation. Further, Ms Nesbitt submitted that, as two members of the board of Dragon Mountain had received an email from her requesting a meeting, it was only reasonable for them to agree to meet with her in order to investigate all of the circumstances.

[36] Dragon Mountain submitted that the Commissioner was obliged to follow the authority established by the Full Bench decision in Pinawin. Further, it was apparent that the Respondent when it terminated Ms Nesbitt’s employment believed that she had engaged in conduct amounting to serious misconduct warranting the summary dismissal of her employment. That belief was based on reasonable grounds and as such no investigation of the conduct was required. Further, the Commissioner’s conclusion was that he was satisfied that the Respondent held that belief and that that belief was based upon reasonable grounds. Finally, Dragon Mountain submitted that Ms Nesbitt had not advanced any submissions as to why the Commissioner’s conclusion is wrong.

[37] Pinawin was one of a number of authorities cited by the Commissioner in his Decision which set out the Commission’s approach to that aspect of the Code dealing with summary dismissal. In respect of the approach and the need for a reasonable investigation, the Full Bench in Pinawin said the following:

“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” (Underlining added)

[38] In the Decision, the Commissioner stated:

“[76] While the decision to terminate Ms Nesbitt's employment was not made on 12 January 2014, when Mr Gardner received the text message, he asked her to attend the office where she worked. Ms Nesbitt took the advice of Mr Guy and the other plumber and did not enter the premises. When Ms Nesbitt returned home, she telephoned Mr Gardner and asked whether he wanted to see her. According to Ms Nesbitt despite the text message he answered "No". In my view, it is more plausible that Mr Gardner's response was "no" because Ms Nesbitt was to attend the office on the following day and the matter could be discussed on Monday, 13 January 2014.
...

[78] I am satisfied that, while there was a delay between the incident on 12 January 2014, and the Board's decision on 14 January 2014, and the notice of dismissal on 17 January 2014, it was summary dismissal for serious misconduct. During that period, Mr Gardner did not speak to Ms Nesbitt as she failed to attend the office for normal work duties...” (Citations not included)

[39] From the above, it appears that the Commissioner came to the view that the Respondent’s capacity to discuss the matter with Ms Nesbitt and/or to undertake an investigation was inhibited by Ms Nesbitt’s failure to attend work from 13 January 2014 until the date of her dismissal. In our view, such a conclusion was reasonably open to the Commissioner. As such, we do not consider that conclusion to diminish in any way the Decision. Nor is that conclusion inconsistent with the approach outlined in Pinawin.

[40] In the proceedings before us Ms Nesbitt was asked what needed to be investigated given that it was not disputed that the derogatory text message had been sent by her. Ms Nesbitt responded that she did not consider that the text of itself warranted her dismissal and that the context in which it was sent needed to be understood. On this point, the Respondent submitted that the context in which the text message was sent was dealt with in the evidence before the Commissioner. However, the Respondent further submitted that while Ms Nesbitt submitted that it was her context that should be accepted, the receiver’s context also had to be considered. While we note Ms Nesbitt’s submission on this point, we observe that it entails an approach which is inconsistent with that set out in Pinawin. Further, we do not accept that the non-executive directors were under any obligation to meet with Ms Nesbitt as she had requested.

[41] Together, this supports a finding that it would not be in the public interest to grant permission to appeal on this ground.

Ground 6 – Matters of General Interest

[42] Ms Nesbitt submitted that the Decision was written in such a way as to be defamatory. In this regard, Ms Nesbitt highlighted what she described as the considerable media attention which the Decision had attracted and which if the Decision were allowed to stand would result in her continuing to suffer unjust scrutiny and prolonged defamation. Ms Nesbitt further submitted that the Decision was not open to the Commissioner on the basis of the facts and that it raises the issue under the Code of whether “regretful comments” on digital and social media can be considered only in the context of the recipient. Ms Nesbitt contended that the Decision also suggests that an employer has no requirement to undertake any investigation into the context of any such “regretful comments” and that accordingly it was in the public interest to provide clarity as to what role context plays in these situations and what determines context. In her oral submissions, Ms Nesbitt contended that the Commissioner had not given weight to any of her submissions.

[43] The Respondent submitted that absolute privilege extends to what is said in the course of court proceedings by a witness giving evidence or a judge with respect to their verdict.

[44] We observe that the conduct which resulted in Ms Nesbitt’s dismissal was both somewhat unusual and involved a colourful description of her employer/supervisor. In those circumstances, we consider that, irrespective of what conclusion the Commissioner ultimately reached, there would have been a degree of media interest in his Decision. This reality does not, in our view, make the Decision unfair or “defamatory”. In determining the matter it was necessary for the Commissioner to set out the background to Ms Nesbitt’s dismissal – this could not be avoided, nor could reference to Ms Nesbitt’s colourful turn of phrase have been avoided for the purposes of the Decision.

[45] We have dealt with the issue of the need for an investigation above in considering ground 5 of the appeal.

[46] As to the weight given to Ms Nesbitt’s submissions by the Commissioner, we are satisfied that the Commissioner had due regard to the parties’ submissions and the evidence before him in coming to his Decision.

[47] Together, this analysis supports a finding that it would not be in the public interest to grant permission to appeal on this ground.

Conclusion

[48] From the above analysis of each of the appeal grounds relied upon by Ms Nesbitt it is clear that the appeal does not raise any issue of importance or general application which would attract the public interest. Further, we do not consider that the Decision otherwise manifests any injustice or was attended by any appealable error. Having considered all of the matters raised by Ms Nesbitt, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal.

[49] Permission to appeal is therefore refused.

VICE PRESIDENT

Appearances:

L. Nesbitt on her own behalf.

L. Swanson solicitor for Dragon Mountain Gold Limited.

Hearing details:

2015.

Sydney:

21 May.

¹ [2015] FWC 779

² (2011) 192 FCR 78 at [43]

³ 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]

⁴ [2010] FWAFB 5343 at [27], 197 IR 266

⁵ Wan v AIRC (2001) 116 FCR 481 at [30]

⁶ 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 288, 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]

⁷ Transcript at PN741-742

⁸ [2012] FWAFB 1359

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