DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mark Bartlett
v
Ingleburn Bus Services Pty Ltd t/as Interline Bus Services
(C2020/7055)

Appeal against decision [2020] FWC 2914 of Deputy President Boyce at Sydney on 28 August 2020 in matter number U2019/14460 – permission to appeal and appeal – approach to procedural fairness in unfair dismissal applications.

Introduction

[1] In a decision published on 28 August 2020 1 (decision), Deputy President Boyce found that the dismissal of Mr Mark Bartlett from his employment as a Bus Driver by Ingleburn Bus Services Pty Ltd (trading as Interline Bus Services) was not unfair. Mr Bartlett now seeks permission to appeal and to appeal against the decision pursuant to s 604 of the Fair Work Act 2009 (FW Act).

[2] There are three grounds of appeal in Mr Bartlett’s amended notice of appeal, summarised as follows:

1. Ground 1 – the Deputy President erred in failing to make a positive finding that Mr Bartlett’s alleged (serious) misconduct in intentionally walking in front of a bus driven by his colleague Mr Tom Cinick on 18 June 2019 (the Near Miss Incident) actually occurred;

2. Ground 2 – the Deputy President erred in the approach to consideration of the criteria in s 387(b) and (c) of the FW Act; and

3. Ground 3 – the Deputy President erred in failing to consider Mr Bartlett’s remorse in connection with whether the dismissal was harsh in all the circumstances.

[3] For the reasons that follow, we have decided to grant permission to appeal and uphold the appeal in relation to Ground 2.

The nature of unfair dismissal appeals

[4] An appeal under s 604 of the FW Act is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.

[5] This appeal is one to which s 400 of the FW Act also applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[6] The test under s 400 has been characterised as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin,5 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.”

[7] 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. 6

[8] 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. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Grounds of appeal

Ground 1 – error in failing to find that Mr Bartlett’s alleged conduct occurred in connection with the “Near Miss Incident”

[9] By this ground of appeal, it is said that in paragraph [26] of the decision the Deputy President determined only that it was “reasonable to conclude” that the Near Miss Incident had occurred as alleged against Mr Bartlett, which fell short of a positive finding about a significant fact in the proceedings. As such, he submits that the Deputy President applied the wrong test and failed to enter into or consider the evidence of Mr Bartlett.

[10] The relevant findings are found in paragraphs [25] and [26] of the decision:

“[25] However, there is more to this story than just the Swearing Incident. Indeed, Mr Oliveri, in making his decision to dismiss the Applicant, relied upon various other incidents of misconduct committed by the Applicant during his employment. Having considered the evidence in relation to those other incidents of misconduct, I have concluded that they are all sustained, but for the Cigarette Incident (upon which I do not consider there to be sufficient evidence to make a finding that the Applicant was caught smoking in the bus, as opposed to outside the bus), and the Conflict Incident (which occurred outside of work). In other words, I have found that in addition to engaging in misconduct concerning the Swearing Incident, the Applicant also engaged in misconduct in relation to the Non-Compliance Incident (August 2017 – formal written warning), Defacing Vest Incident (December 2018 – formal re-issued written warning), and Near Miss Incident (June 2019 – final written warning). 

[26] Specifically, in relation to the Near Miss Incident, the Respondent submits that the Applicant intentionally walked out in front of Mr Cinick’s vehicle, and that the Applicant did so to antagonise Mr Cinick. Having reviewed the CCTV footage myself at hearing, I consider it reasonable to conclude that the Applicant intentionally moved (wandered) in front of the moving bus being driven by Mr Cinick. This incident resulted in a final warning being issued to the Applicant (within six months of the Applicant’s dismissal). It may well be that this final warning concerned the Applicant’s behaviour in relation to the Near Miss Incident, but it can equally be said (on any reasonable view) to be a final warning in relation to bad attitude and poor conduct. Walking in front of a moving bus as a ‘gag’, or to intentionally antagonise another driver, is nothing less.”

[11] Paragraph [27] of the decision is also relevant. It includes the findings that “on the evidence, it is unquestionable that the Applicant wilfully engaged in the conduct described in the …Near Miss … Incidents”; that “this conduct occurred” and that it amounted to one of many “repeated instances of misconduct”.

[12] It is apparent from the paragraphs above that Ground 1 of the appeal relies on a selective reading of the decision. The relevant misconduct is first described in paragraph [6(h)] of the decision, which records the allegation against Mr Bartlett that he had intentionally walked in front of a bus being driven by Mr Cinick and that Mr Bartlett was given a final written warning for the incident on 26 June 2019. Paragraph [26] must be read as part of the decision as a whole, including paragraphs [25] and [27]. In paragraph [25], the Deputy President makes express findings that various incidents of misconduct including the Near Miss Incident are “sustained” and that Mr Bartlett “engaged in misconduct” in relation to the Near Miss Incident.

[13] These findings appear to us to have been reasonably open on the evidence, including the CCTV footage of the incident and the contemporaneous eyewitness account of another colleague, Mr Michael Kennedy, who was with Mr Bartlett at the time the Near Miss Incident occurred.

[14] No arguable case of appealable error is made out in relation to Ground 1.

Ground 2 – error in the approach to consideration of the criteria in s 387(b)-(c)

[15] Mr Bartlett submits that the Deputy President erred in his approach to consideration of the criteria in s 387(b) and (c) of the FW Act in paragraphs [36]-[37] and [41] of the decision by finding that:

1. In assessing whether an applicant for an unfair dismissal remedy had been afforded procedural fairness, it was incumbent on the applicant to point to matters that they could have identified to the employer prior to dismissal which could have given rise to the employer altering its decision;

2. An applicant had to show that they would have said something different to the employer had they been given a proper opportunity to respond;

3. The consequences of the absence of procedural fairness needed to be identified in order for a denial of procedural fairness to give rise to an overall finding of unfairness;

4. A conclusion that an applicant has not been denied procedural fairness leans away from an ultimate finding of unfair dismissal;

5. Interline Bus Services complied with s 387(b) of the FW Act by providing Mr Bartlett with a letter of termination;

6. Interline Bus Services complied with s 387(c) of the FW Act despite not having told Mr Bartlett that his employment was at risk and/or of the matters that it intended to rely on in deciding to terminate his employment.

[16] Mr Bartlett contends that the findings of the Deputy President are contrary to settled jurisprudence and amount to errors of the kind described in House v King. 8

[17] The first three contentions of error above deal with the Deputy President’s findings regarding the onus said to be borne by an applicant in relation to procedural fairness in the unfair dismissal context, including the consequences of failing to meet the identified threshold. The fourth is related but goes to the weight afforded to certain matters where no denial of natural justice is found. The final two deal with factual findings about whether Mr Bartlett was afforded procedural fairness in connection with his dismissal.

[18] For context, it is useful to set out paragraphs [33] to [41] of the decision in full, which set out the Deputy President’s consideration pursuant to s 387(b) and (c) (footnotes omitted):

“Was the Applicant notified of the valid reason(s)?

[33] An employee must be given explicit notification of a valid reason for termination before a decision is made to terminate their employment.

[34] The Applicant submits that the Respondent never made its reasoning clear as to the reason why the Applicant was terminated. The Applicant notes that the Termination Letter lists the numerous warnings given to the Applicant, and states that the decision to terminate his employment is “not reversable”. Further, the Applicant highlights that the letter is dated 4 December 2019, but given to the Applicant on 9 December 2019 (the inference being that the decision to terminate the Applicant was made before he was given notice of same). Finally, the Applicant submits that the Termination Letter fails to provide a specific reason in clear and unambiguous terms as to why the Applicant was actually dismissed. In this regard, the Applicant submits that the only conclusion that the Commission can make on the evidence is that the Applicant was not provided with notification of the reason for his dismissal.

[35] As to the supposed deficiency of reasons provided for dismissal, this submission is easily put aside. The Termination Letter clearly states that the reason for the Applicant’s dismissal was because of the various misconduct incidents described in the evidence. The Respondent has clearly and expressly communicated its reasons for dismissal to the Applicant. No more need be said.

[36] As to the disjunction between the date on the Termination Letter, and the date it was provided to the Applicant, Mr Oliveri’s evidence was that he directed another person to draft the letter on 4 December 2019, but that he was still “considering” whether to terminate the Applicant right up to the end of the termination meeting. I accept this evidence (Mr Oliveri came across to me as a straight-forward, no nonsense, truthful witness). Importantly, the Applicant was aware that the Respondent had taken an unfavourable view as to his conduct prior to the termination meeting. The Applicant has not pointed to any aspect of the response he provided at the termination meeting that he now asserts could have given rise to the Respondent altering its decision. In my view, the consequences of the absence of procedural fairness need to be identified, not just the absence of procedural fairness itself, if one is to be in a position to submit that such absence ought give rise to an overall finding as to unfairness. Even inferences arising from an absence of procedural fairness need to have at least some evidentiary foundation to be made, and matters of assumption and speculation ought never be relied upon.

[37] Taking all of the facts and circumstances into account (i.e. those beyond just the Termination Letter), the foregoing findings lean away from an ultimate finding that the Applicant’s dismissal was harsh, unjust and/or unreasonable.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[38] Procedural fairness is neither a science, nor term of art. It requires an employee protected from unfair dismissal to be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. There is no particular form required for this ‘opportunity to respond’, and an employee may be given such an opportunity in person, in discussion, or in writing. An opportunity to respond is to be provided before a decision is taken to terminate an employee’s employment. The opportunity to respond does not require formality or technicality, and is to be considered in a common sense manner. Where the employee is aware of the particular nature of an employer’s concern about his or her conduct or performance, and has an opportunity to respond to that concern, this will ordinarily be enough to satisfy legislative requirements.

[39] The Applicant submits that the Respondent did not provide him with an opportunity to properly respond to the reasons for his termination, and so treated him unfairly. The Applicant identifies that the allegations made against him were not put to him in writing, and asserts that because of this, he was not provided an opportunity to respond to those allegations.

[40] I do not accept the Applicant’s submissions in this regard. The evidence is that the Applicant was provided with an opportunity to verbally respond to the various allegations of misconduct (made against him) when they were raised with him in person by the Respondent’s managers and/or Mr Oliveri. The manner in which the Respondent sought to address the Applicant’s instances of misconduct, at every step and turn, whilst not ideal, was nonetheless, in my view, an acceptable approach in the circumstances, and one in which the Applicant was familiar with (having regard to the manner in which concerns had been raised with him previously). The Respondent’s approach was frank, upfront, and appropriate in respect of an employee who, by his own admission, is not entirely literate. Indeed, the notion that disadvantage or unfairness might be visited upon an employee who is not entirely literate by having allegations of misconduct put to them verbally (as opposed to in writing) is counterintuitive.”

[41] The Applicant’s submissions regarding procedural fairness are unduly pernickety. In my view, the Respondent did afford the Applicant procedural fairness. The Applicant was put on notice in regard to the allegations (including their particulars) made against him and had a dialogue with the Respondent about same. That dialogue, or response, to the allegations put to him, is maintained by the Applicant in these proceedings. In other words, it is not the case in these proceedings that the Applicant says, ‘I was denied an opportunity (or a proper opportunity) to respond to the allegations made against me, and if I did get that opportunity, I would have said something different’.”

[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. 9 They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made.

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.

[20] Having regard to the above principles, we consider that the Deputy President’s consideration of s 387(b) and (c) is plainly attended by appealable error in three respects.

[21] First, the Deputy President’s consideration of s 387(b) proceeded on the basis of the contents of the termination letter, which was given to Mr Bartlett to communicate his dismissal. It could not, for the purpose of s 387(b), constitute notification of the reason for his dismissal because it was not provided before the decision to dismiss was made.

[22] The evidence before the Deputy President demonstrated that, at the commencement of the meeting on 9 December 2019 which ended with Mr Bartlett’s dismissal, he was requested to provide a response to the Swearing Incident. If the Swearing Incident alone had been found by the Deputy President to be sufficient to constitute a valid reason for the dismissal, then that might be sufficient to support a finding under s 387(a) that Mr Bartlett had been notified of the reason for his dismissal. However, the Deputy President had earlier found that the Swearing Incident did not by itself justify dismissal; 10 rather, he had found that this incident together with three earlier incidences of misconduct (the Non-Compliance, Defacing Vest and Near Miss Incidents) constituted a valid reason for dismissal.11 It is clear that Mr Bartlett was not notified of these additional matters as forming part of the reason for dismissal.

[23] Consequently, the Deputy President made a factually incorrect finding for the purpose of s 387(b). This was a significant error of fact. The finding that should have been made was that Mr Bartlett was not notified of the reason for his dismissal.

[24] Second, in relation to s 387(c), to the extent that the Deputy President made any finding at all, it was the wrong finding. Because, as just explained, Mr Bartlett was not notified of the reason for his dismissal that the Deputy President found to be valid, he was not given an opportunity to respond. The Deputy President appears to have considered, in respect of the three earlier incidents of misconduct, that because Mr Bartlett was given an opportunity to respond to each of the earlier incidents at the time they occurred, this was sufficient to constitute the requisite opportunity to respond for the purpose of s 387(c). 12 We do not agree. The opportunity to respond to which s 387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed. The earlier incidents occurred many months or years before the dismissal, and any opportunity to respond to each incident individually at the time it occurred does not constitute an opportunity to respond to a reason for dismissal consisting of four incidents of misconduct considered collectively.

[25] Third, as we read the decision, the Deputy President proceeded on the basis that any finding of a denial of procedural fairness concomitant upon the findings made pursuant to s 387(b) and (c) could not weigh in favour of a finding of unfair dismissal unless the applicant can point to something they might have said, or did say, that could have made a difference to the outcome. 13 However, paragraphs (b) and (c) of s 387 are concerned with the observance of fair decision-making procedures, and not necessarily with the character of the decision that emerges from those procedures.14 Where a denial of procedural fairness has been found, the usual approach is that it will not be treated of significance only if it is firmly established that it could have made no difference to the outcome.15

[26] In approaching the matter from the starting point that unfair dismissal can only flow from a denial of procedural fairness where there are demonstrated consequences of that denial, the Deputy President misapprehended the statutory task as it relates to s 387(b) and (c) of the FW Act and closed his mind to the possibility that Mr Bartlett had been unfairly dismissed on procedural fairness grounds. A consequence of the denial of procedural fairness in this case was that Mr Bartlett’s opportunity to respond before he was dismissed was unfairly narrow in scope, because he did not know that his prior warnings for misconduct were being relied upon in connection with the decision to dismiss. It may be that an opportunity to address those matters would not have made any difference to the ultimate outcome, but it is at least a real possibility that Mr Bartlett would have addressed the cumulative effect of his conduct when asked why his employment should not be terminated. Instead, the opportunity to be heard on that issue, and for any response to be considered prior to his dismissal, was denied. Accordingly, the s 387(b) and (c) considerations should have been treated as weighing in favour of a finding of unfair dismissal.

[27] For these reasons, we uphold Ground 2 of the appeal.

Ground 3 – error in failing to consider Mr Bartlett’s remorse in connection with whether the dismissal was harsh in all the circumstances

[28] By this ground, Mr Bartlett submits that the Deputy President did not consider or weigh his contention that a factor pointing to the harshness of his dismissal was that he was remorseful and apologetic for his conduct. It is put that the Deputy President denied Mr Bartlett procedural fairness and made a House v King error by failing to take this into account as a material consideration about which Mr Bartlett gave unchallenged evidence.

[29] The first point to make is that the evidence about Mr Bartlett’s remorse for his conduct does not appear to us to have gone unchallenged. Paragraphs [6(n)] and [13(d)] of the decision summarise the competing evidence from Mr Bartlett and Mr Oliveri, Managing Director of Ingleburn Bus Services, about Mr Bartlett’s remorse (or lack of remorse) in relation to the incident that finally led to his dismissal. Mr Bartlett sent a message to Mr Oliveri on 27 November 2019, two days after the ‘Swearing Incident’ and the day of his meeting with Mr Oliveri to discuss his response. The message (recounted above) apologises but in an equivocal way. The Deputy President found Mr Oliveri to be a “straight-forward, no nonsense, truthful witness”. 16 The same cannot be said in relation to Mr Bartlett, whose evidence the Deputy President described alternatively as “untenable” and seeking to “explain away, or otherwise downplay” the significance of a series of incidents amounting to misconduct.17 To the extent that there was unchallenged evidence in relation to Mr Bartlett’s remorse, it was that of Ms Karen Sherry (recipient of the offensive complaint response) who testified that Mr Bartlett had not apologised to her despite ample opportunity to do so.

[30] It is true that the Deputy President did not deal expressly with whether Mr Bartlett’s remorse should weigh in favour of a finding that the dismissal was harsh. That is not to say that the Deputy President did not turn his mind to the matter. In our view, the structure of the decision responds to the way the matter of remorse was relied upon in the proceedings. On a fair reading, we are not persuaded that the Deputy President failed to take into account the question of Mr Bartlett’s remorse in answering the case before him.

[31] Mr Bartlett relied on his past and present remorse for the purpose of:

1. Demonstrating that there was no valid reason for his dismissal;

2. Submitting that dismissal was a disproportionate (and therefore harsh) response to his conduct and that he did not receive a “fair go”; and

3. Seeking (unsuccessfully) to persuade the Deputy President to prefer Mr Bartlett’s evidence over that of other witnesses.

[32] The Deputy President dealt with the question of valid reason at paragraphs [30] to [32] of the decision.

[33] The Deputy President dealt with the question of proportionality in paragraph [48] of the decision. Under the heading of “harshness” in closing submissions, the particular matters relied upon by Mr Bartlett were proportionality (whether termination for serious misconduct was harsh); length of service; the cursory nature of the allegations; the fact that serious misconduct had not been made out; denial of procedural fairness; and the impact of the termination on Mr Bartlett. To the extent that the submissions dealt with remorse, it was only indirectly or in passing.

[34] We have summarised the Deputy President’s findings in relation to credibility above, which favoured Mr Oliveri and not Mr Bartlett. It was for the Deputy President to determine which evidence he preferred, as well as matters of relevance and weight.

[35] No arguable case of appealable error is made out in relation to Ground 3.

Conclusion on the appeal

[36] For the reasons stated, we grant permission to appeal in respect of Ground 2, uphold the appeal in respect of this appeal ground and quash the decision. We consider it appropriate to redetermine Mr Bartlett’s application for an unfair dismissal remedy ourselves.

Rehearing

[37] In relation to the matters requiring initial determination in s 396 of the FW Act, we find as follows:

1. Mr Bartlett’s unfair dismissal application was made within the period required by s 394(2);

2. Mr Bartlett was a person protected from unfair dismissal;

3. Interline Bus Services was not a “small business employer” as defined in s 23 of the FW Act, so that the Small Business Fair Dismissal Code is inapplicable; and

4. The dismissal was not a case of genuine redundancy.

[38] In our assessment of whether Mr Bartlett’s dismissal was harsh, unjust or unreasonable, we adopt the findings of the Deputy President in relation to paragraphs (a) and (d)-(h) of s 387. 18

[39] In relation to s 387(b), for the reasons above we find that Mr Bartlett was not notified of the reason for his dismissal. This weighs in favour of a finding of unfair dismissal.

[40] In relation to s 387(c), for the reasons above we find that Mr Bartlett was not given an opportunity to respond to the reason for his dismissal. This weighs in favour of a finding of unfair dismissal.

[41] On balance, the valid reason for Mr Bartlett’s dismissal, which was the cumulative result of a series of instances of misconduct over a sustained period of time, outweighs the denial of procedural fairness in the process leading to dismissal. The process was otherwise carried out in the presence of his union representative and in a manner suited to the environment in which Mr Bartlett worked. The consequences of the dismissal in Mr Bartlett’s case must be assessed to be significant, given in particular his age, his length of service (both with this particular employer and in the industry) and the financial consequences of the dismissal. These are clearly matters weighing in favour of a finding of unfairness. If Mr Bartlett had been dismissed for a single instance of misconduct, this might be sufficient to “tip the balance” in favour of a finding that the dismissal was unfair. Regrettably, however, he engaged in a course of unacceptable conduct over a long period of time, and his incapacity to accept responsibility for that behaviour and rectify his conduct in the face of numerous warnings from his employer inevitably led to his continued employment becoming untenable. In this respect, we emphasise the following findings made by the Deputy President, with which we agree:

“[27] The Applicant’s evidence that during his employment he was not subject to any “major” poor performance issues is untenable. In my view, on the evidence, it is unquestionable that the Applicant wilfully engaged in the conduct described in the Non-Compliance, Defacing Vest, Near Miss, and Swearing Incidents. The fact that the Applicant seeks to explain away, or otherwise downplay, the significance of these incidents (to the Respondent, and in these proceedings) cannot alter the fact that this conduct occurred. Nor can it alter the fact that such conduct, in my view, amounts to repeated instances of misconduct to which the Applicant received written warnings (including two “final written warnings”), and had his employment terminated for (Swearing Incident).”

[42] In conclusion, the nature of the valid reason for Mr Bartlett’s dismissal is such that it must be given decisive weight in our consideration. We are not satisfied that the dismissal was harsh, unjust or unreasonable. Accordingly, it cannot be found to be an unfair dismissal.

Disposition

[43] We order as follows:

1. Permission to appeal is granted in relation to Ground 2.

2. The appeal is upheld.

3. The decision ([2020] FWC 2914) is quashed.

4. On redetermination, the application in U2019/14460 for an unfair dismissal remedy is dismissed.

VICE PRESIDENT

Determined on the basis of written submissions.

Printed by authority of the Commonwealth Government Printer

<PR725001>

 1   [2020] FWC 2914

 2   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

 3   Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan, Marshall and Cowdroy JJ

 4   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]

 5   [2010] FWAFB 5343, 197 IR 266 at [27]

 6   Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 8   [1936] HCA 40; 55 CLR 499

 9   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [27], [64]-[73], [75]; Chubb Security Australia Pty Ltd v Thomas [2000] AIRC 822 at [41]; Wadey v YMCA Canberra [1996] IRCA 568

 10   [2020] FWC 2914 at [24]

 11   Ibid at [27]-[30], [54]

 12   Ibid at [40]-[41], [54]

 13   Ibid at [36], [41]

 14   See, by analogy, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82 at [58] per Gaudron and Gummow JJ

 15   See, again by analogy, Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141

 16   [2020] FWC 2914 at [36]

 17   Ibid at [27]

 18   Ibid at [38]-[42], [43]-[51]