FWAFB 5230
Fair Work Act 2009
s.604—Appeal of decision
APS Group (Placements) Pty Ltd
VICE PRESIDENT LAWLER
Appeal - unfair dismissal - whether conduct breached the s.18C(1) of the Racial Discrimination Act 1975 (Cth) or s.20C of the Anti-Discrimination Act 1977 (NSW).
DECISION OF VICE PRESIDENT LAWLER AND COMMISSIONER ROBERTS
 This is an application pursuant to s.604 of the Fair Work Act 2009 (FW Act) by APS Group (Placements) Pty Ltd (APS) for permission to appeal and, if permission is granted, an appeal against a decision 1 and order2 of Commissioner Cambridge granting the application for an unfair dismissal remedy made by the respondent to the appeal (employee).
 Section 400 of the FW Act provides that we must not grant permission to appeal against an unfair dismissal decision made under Part 3-2 of the FW Act unless we “consider that it is in the public interest to do so.” By virtue of s.604(2), we must grant permission to appeal if we are satisfied that it is in the public interest to do so. What will satisfy this public interest test was considered by a Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin 3:
“ Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
 Although 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, it seems to us that none of those elements is present in this case.”
 If permission to appeal is granted the appeal proceeds as a rehearing albeit that the Full Bench is not permitted to exercise its powers under s.607(3) unless error is demonstrated. 4 Because the decision at first instance was a discretionary decision, the error that must be established is an error within the well known principles in House v The King5.
 APS is a labour hire company. The employee was working on a placement at the Eastern Creek warehouse of VersaCold, a logistics company specialising in the transport of frozen goods. One end of the warehouse is occupied by a very large freezer. The Commissioner summarised the facts giving rise the dismissal as follows:
“ On 24 February 2010 the applicant was working a night shift as a Picker at the VersaCold Eastern Creek site. Towards the end of his shift the applicant etched the words “WELCOME TO HELL” in the ice that accumulates on the door of the freezer room where he was working on that night. The applicant also etched a swastika into the ice in close proximity to the words “WELCOME TO HELL”.
 The words “WELCOME TO HELL” (the words) and the swastika (the symbol), were seen by other employees and the applicant’s actions in etching the words and symbol were captured on CCTV. The employer contacted the applicant on the following day, 25 February and cancelled his rostered shifts. The employer conducted an investigation into the applicant’s actions including interviewing the applicant on two separate occasions.
 Although the applicant initially denied that he had written the words and symbol he subsequently confirmed that he wrote the words and symbol as part of what he described as a jovial display of criticism of the harsh working conditions in the freezer room. The employer was very offended by, in particular, the symbol, because senior staff members of the employer are Jewish.
 The employer concluded that the applicant had defaced company property in a manner that amounted to racial vilification and it summarily dismissed the applicant for gross misconduct. The applicant was provided with a letter of dismissal dated 5 March 2010, which described the reason for dismissal as serious misconduct in the form of discrimination on the grounds of racial vilification.”
 The Commissioner summarised APS’s case as follows:
“ The employer was represented by Ms Murphy who submitted that the dismissal of the applicant was not unfair. Ms Murphy submitted that the applicant’s action in etching the words and symbol was an open display of a seriously offending symbol that any reasonable person would, or should, have known would cause offence and hurt to others at the workplace.
 Ms Murphy submitted that the employer had obligations and responsibilities arising under the Racial Discrimination Act 1975(Cth) and the Anti-Discrimination Act 1977(NSW). Ms Murphy said that the employer was required to protect other employees from racial discrimination and or vilification and therefore the misconduct of the applicant could not be tolerated.
 Ms Murphy submitted that there was a valid reason for the dismissal of the applicant and that the employer had properly investigated the matter so that an opportunity to respond had been provided to the applicant. Ms Murphy submitted that there was no basis to find that the applicant had been unfairly dismissed and she urged that FWA dismiss the matter.”
 The Commissioner commenced his consideration of whether there was a valid reason for the dismissal with a discussion on the reason(s) for the dismissal:
“ It is relevant to set out that part of the text of the letter of dismissal dated 5 March 2010, wherein it was stated:
“Grounds for termination
You were advised of the grounds for termination of your employment at the meeting held on 3rd March 2010 at the APS Parramatta Branch conducted by Sherry Little, APS State Manager. The meeting was attended by Kevin Martin, APS Transport Manager and yourself.
The grounds are as follows:
Serious misconduct in the form of:
(a) Discrimination on the grounds of racial vilification
The details of these allegations, which were detailed to you at our meeting, are that:
• On Wednesday the 24th of February 2010, between 23:00 and 24:30, while at work at VersaCold Logistics, Eastern Creek, in the freezer area, you wrote words ‘welcome to hell’ and the swastika symbol. VersaCold have video footage of this.”
 The first observation that can be made about the letter of dismissal is that although the “Discrimination on the grounds of racial vilification” is preceded by the letter “(a)” there was no “(b)” or any other stated ground for dismissal. This unusual peculiarity with the stated reasons for dismissal was raised by FWA with Ms Little.
 Ms Little confirmed that there was no error with or omission from the letter of dismissal in respect to the reason or reasons for dismissal. Ms Little was clear that the reason for the applicant’s dismissal was confined to the “Discrimination on the grounds of racial vilification” as set out in the letter of dismissal. The following extract from transcript involving FWA questioning of Ms Little is relevant:
“...was there anything else other than what you concluded to be the deliberate misconduct involving the swastika - was there anything else that underpinned your decision during the meeting of the 3rd to decide to dismiss?---I honestly felt that what he’d done was wrong, that it was racial vilification, that it was offensive and not acceptable. Given his behaviour in the past wasn’t really a consideration at this point, it was his behaviour then and the comments during our meetings - so discussing people of colour. I felt that perhaps - or this is who he is and what he’s done and it was wrong. I had to do the right thing. It was my duty to do the right thing in termination.”
 The evidence provided by Ms Little on this point was curious. The letter of dismissal also referred to the applicant’s initial denial of the misconduct involving the writing of the words and the symbol. The evidence strongly suggested that it was not until the applicant was advised of the CCTV footage that he admitted to the misconduct. Consequently it appeared that the applicant may have been dishonest with the employer when he initially denied the misconduct. However there was no suggestion by Ms Little that the employer considered the applicant’s apparent dishonesty as a reason for dismissal.
 Consequently the reason for the dismissal of the applicant was established to be exclusively that stated in the letter of dismissal as “Discrimination on the grounds of racial vilification”. The subsequent consideration has therefore involved a requirement to determine whether the applicant’s misconduct involving the etching of the words and the symbol could properly be established to represent discrimination on the grounds of racial vilification.”
 The Commissioner concluded that the reason for the dismissal relied upon by APS in its dismissal letter was not made out:
“ The words “WELCOME TO HELL” of themselves are, on any reasonable and objective analysis, unable to represent discrimination on the grounds of racial vilification. The symbol of the swastika on the other hand, is a well-established icon synonymous with racial discrimination, oppression and bigotry. The misconduct of the applicant was clearly focused upon the etching of the swastika as opposed to the words.
 It is understandable that Jewish people in particular would be offended by the swastika symbol. In many respects the swastika is a symbol of the very worst that human nature can produce. It must also be recognised that non-Jewish people are unlikely to have the same depth of understanding for the offence and hurt that would be created by the sight of the swastika irrespective of the context in which the symbol was depicted.
 A careful analysis of the circumstances in which the applicant utilised the swastika does not support a finding that he was acting with an intention to vilify Jews or any other race or creed of people. It is important to recognise the connection between the words and the symbol. The swastika was added after the words “welcome to hell” were etched in the ice. When used in this context the swastika connotes the “hell” of the words with the oppressive nature of the working conditions in the freezer room.
 Ironically, when used in this context the swastika was utilised as reinforcement and reminder of the hell of the suffering and oppression of the Holocaust. I readily acknowledge and accept that this rationale for the use of the symbol does not remove or necessarily lessen the offence and hurt that would be felt, particularly by Jews, by the open display of the swastika. The use of the swastika, irrespective of context, is offensive and unacceptable particularly in the workplace.
 However, when the rationale for the use of the swastika is revealed, the stated and exclusive reason for the applicant’s dismissal cannot be sustained as fact. The applicant strongly maintained that he never intended the etching of the swastika to have any racial connotation whatsoever. Although this is a naive or ignorant proposition, it is supported by the analysis that revealed the rationale for the use of the swastika in connection with the words “welcome to hell.”
 Consequently the reason for the applicant’s dismissal as maintained by the employer and involving the serious misconduct of discrimination on the grounds of racial vilification, has no proper factual basis.”
 Paragraphs  to  of the Commissioner’s reasons suggest that the Commissioner proceeded on the basis that whether the conduct of the employee involved a breach of the Racial Discrimination Act 1977 (Cth) (RD Act) turned on whether or not the employee “was acting with an intention to vilify Jews or any other race or creed of people”. As will become apparent, to this extent the decision of the Commissioner is affected by error.
 Significantly, however, the Commissioner was nevertheless satisfied that the conduct of the employee amounted to misconduct, observing:
“ On balance however it must be recognised that the applicant clearly committed serious misconduct. The etching of the words and the symbol even when properly considered in context represents misconduct, albeit not discrimination on the grounds of racial vilification. Unfortunately this misconduct was exacerbated by the applicant's responses to the employer’s investigation of the misconduct involving the etching of the words and the symbol.
 The applicant displayed an abrasive and insensitive approach to the employer’s enquiry regarding the etching incident. These unfortunate personal characteristics were displayed during the applicant’s appearance at the Hearing. It was highly regrettable to observe that the applicant had not appreciated the offence and hurt that he had caused by use of the swastika and the subsequent insensitive suggestions that he had made including absurd connections between Hitler killing the Jews and the Jews killing Jesus. The applicant’s insensitivity and ignorance manifest as a view that can be summarised as; “Get over it, the war finished 70 years ago.”
 Consequently it was understandable that the employer mistakenly connected the etching of the swastika with racial vilification. Although purely speculative, if the applicant had acknowledged that he had (unintentionally) caused great offence and hurt, apologised and displayed genuine remorse, he may have experienced compassion and kindness from his employer and suffered little more than several lost shifts and a formal warning. Instead the applicant acted in a manner which only maintained offence and hurt to the employer and in doing so created insurmountable impediment to any prospect of reinstatement as a remedy for his unfair dismissal.”
Whether racial vilification established?
 Section 387(a) of the FW Act requires the tribunal to consider “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)”. In the letter of termination APS asserted that the respondent’s employment was terminated because of serious misconduct in the form of discrimination on the grounds of racial vilification.
 The primary issue raised by the grounds of appeal is whether the Commissioner erred in concluding that the conduct did not involve a breach of the RD Act and the Anti-Discrimination Act 1977(NSW) (AD Act). On hearing of the appeal, counsel for the appellant confined his arguments to the RD Act.
Was there a breach of the Racial Discrimination Act 1975 (Cth)?
 The RD Act provides:
“Part IIA—Prohibition of offensive behaviour based on racial hatred
18B Reason for doing an act
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
 There is no suggestion that any of the exemptions in s.18D applied in this case and that section has been set out as part of the context in which s.18C must be construed. Section 18E makes a person vicariously liable for the acts of their employees and agents. Section 18F provides for the concurrent operation of relevant State and Territory legislation.
Whether act done “otherwise than in private”?
 Plainly enough, the statutory prohibition in s.18C is designed not to apply to acts done “in private”. While s.18C(2) is constructed in such as way as to leave open the possibility that an act may be done “otherwise than in private” even though it does not come within any of the descriptions in s.18C(2)(a), (b) or (c), counsel for APS accepted, we think correctly, that s.18C(2), in combination with the definition of public place in s.18C(3), should be interpreted as a comprehensive specification of when an act is done “otherwise than in private” for the purposes of s.18C(1) the RD Act.
 Having regard to the object and purpose of the legislation, it is more than tolerably clear the definition of “public place” in s.18C(3) is intended to ensure that conduct in places like shopping centres, theatres, bars and the like are covered by the prohibition notwithstanding that they may be privately owned. In contending that the VersaCold warehouse was a “public place” within the meaning of s.18C(3), counsel for VersaCold relied on the fact that the VersaCold warehouse - and the freezer door on which the etching was made - was accessed by employees of VersaCold and APS, cleaning and other contractors and by existing customers of VersaCold.
 The word “public” in s.18C is not defined and has its ordinary meaning as a noun. It is relevantly defined in Macquarie Dictionary as:
“...–noun 8. Also, the general public. the people constituting a community, state, or nation.
10. public view or access: in public.”
 In our view, on the proper construction of s.18C(3), the “right” or “invitation” needs to be a right or invitation that exists in relation to persons by virtue only of their being members of the public or a subgroup of the public, not by virtue of some other status that they hold such as employee, contractor or existing customer.
 There is no suggestion in the evidence that members of the general public, or a subgroup of the general public, had access to the VersaCold warehouse as a matter of right or general invitation. In particular, there was no evidence of a standing invitation to existing customers or potential customers to enter the warehouse. We have considered whether the VersaCold warehouse would be considered a “public place” within the meaning of the definition in s.18C(3) on the basis that any member of the public might become a customer etc. of VersaCold and that VersaCold might permit - that is, grant an invitation to - any customer etc. to enter its warehouse. We do not think that such a construction should be placed on the definition in s.18C(3). This approach taken to its logical extreme would mean that all or virtually all privately owned premises will be a “public place” within the meaning of s.18C(3) because, generally speaking, the owner of privately owned premises has the right to invite any person to enter their premises. It seems to us that such a construction is not consistent with the evident purpose and object of s.18C and the RD Act as a whole. We are not persuaded on the evidence before the Commissioner that the VersaCold warehouse was a public place within the meaning of s.18C(3).
 Similarly, we have difficulty accepting, as a matter of the ordinary meaning of the language, that the etching on the VersaCold warehouse freezer door constituted “images or writing to be communicated to the public” within the meaning of s.18C(2)(a). Further, if the VersaCold warehouse is not a “public place” then, on the evidence before the Commissioner, there is no question of s.18C(2)(b) or (c) being satisfied.
 We recognise that there is scope for debate over the correctness of our approach to when an act is done “otherwise than in private” within the meaning of s.18C and, accordingly, we have considered whether the other requirements in s.18C have been made out.
 Section 18C(1)(a) sets up an objective test or standard. 6 As the test is objective, it is not necessary for a party contending for a breach (in this case APS) to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. Evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible on, but not determinative of, the issue of contravention7.
 In Jones v Toben 8 Branson J dealt with the requirement in s.18C(1)(a) as follows:
“90 The RDA does not define the words “offend, insult, humiliate or intimidate” or any of them. They are therefore to be given their ordinary meanings. The Macquarie Dictionary 2nd ed and The Oxford English Dictionary 2nd ed contain the following relevant definitions:
* “to irritate in mind or feelings; cause resentful displeasure in” (Macquarie)
* “to hurt or wound the feelings or susceptibilities of; to be displeasing to or disagreeable to; to vex, annoy, displease, anger; now esp. To excite a feeling of personal annoyance, resentment, or disgust in (any one). (Now the chief sense).” (Oxford)
* “to treat insolently or with contemptuous rudeness, affront.” (Macquarie)
* “to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage.” (Oxford)
* “to lower the pride or self-respect of; cause a painful loss of dignity to; mortify.” (Macquarie)
* “to lower or depress the dignity or self-respect of; to subject to humiliation; to mortify.” (Oxford)
* “to make timid, or inspire with fear; overawe; cow.” (Macquarie)
* “to render timid, inspire with fear; to overawe, cow; in modern use esp. to force or deter from some action by threats or violence.” (Oxford)
91 Each of the words “offend, insult, humiliate or intimidate” bears a slightly different meaning. It would seem that the first two words involve closely related concepts and the same may, perhaps to a lesser extent, be said of the final two words.
92 In Creek v Cairns Post Pty Ltd  FCA 1007; (2001) 112 FCR 352 at  Kiefel J observed:
“To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights.”
I do not understand her Honour to have intended by the above observation to imply that a gloss should be placed on the ordinary meaning of the words that Parliament chose to include in s 18C of the RDA. Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to “mere slights” in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at ). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.”
 In Jones v Toben Branson J was concerned with whether the publication of material on a website accessible to the public at large involved a breach of s.18C of the RD Act. The material in question was found to give rise to the following imputations 9.
(a) there is serious doubt that the Holocaust occurred;
(b) it is unlikely that there were homicidal gas chambers in Auschwitz;
(c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and
(d) some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
 Branson J held that publication of the material in question met the requirement in s.18C(1)(a), reasoning:
“93 The applicant gave evidence that the Australian Jewish community has the highest percentage of survivors of the Holocaust of any Jewish community in the world outside of Israel. Each of the first two of the imputations identified in  above thus challenges and denigrates a central aspect of the shared perception of Australian Jewry of its own modern history and the circumstances in which many of its members came to make their lives in Australia rather than in Europe. To the extent that the material conveys these imputations it is, in my view, more probable than not that it would engender feelings of hurt and pain in the living by reason of its challenge to deep seated belief as to the circumstances surrounding the deaths, or the displacement, of their parents or grandparents. For the same reason, I am satisfied that it is more probable than not that the material would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively.
94 I am also satisfied that it is more probable than not that the third and fourth of the imputations identified above, by reason of their calumnious nature, would offend, insult, hurt and wound members of Australian Jewry and engender in them a sense of being treated contemptuously, disrespectfully and offensively.
95 For the above reasons I am satisfied that the publication of the material set out in  above on an website which is not password protected was an act reasonably likely in all of the circumstances to offend and insult a group of people, namely Australian Jewry.
96 It also seems to me to be objectively likely, in the sense discussed above, that the publication of the material set out in  above on an website which is not password protected would cause damage to the pride and self-respect of vulnerable members of the Australian Jewish community, such as, for example, the young and the impressionable. The World Wide Web is now an important tool which many people, including students, may be expected to utilise when searching for information. Vulnerable members of the Jewish community, as a result of being exposed to material of the kind set out in  above, might well experience, whether consciously or unconsciously, pressure to renounce the cultural differences that identify them as part of the Jewish community. I am satisfied that it is more probable than not that there are members of the Australian Jewish community who will become fearful of accessing the World Wide Web to search for information touching on their Jewish culture because of the risk of insult from the material set out in  above. For these reasons I am satisfied that the act of publishing that material was an act reasonably likely, in all of the circumstances, to humiliate and intimidate a group of people, namely members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability.”
 A Full Court of the Federal Court has held that “Jews in Australia can comprise a group of people with an ‘ethnic origin’ for the purposes of the [RD Act]” 10.
 We are satisfied that the etching by the employee was reasonably likely, in the all the circumstances, to offend Jewish persons who were working in or visiting the VersaCold warehouse, including, in particular, Jewish persons who were members of staff APS or VersaCold (the Group). Objectively determined, the etching would be reasonably likely to offend persons in the Group because it would reasonably be seen by most Jewish people as trivialising the Holocaust. Accordingly, the requirement in s.18C(1)(a) was made out in this case.
 The issue that was the primary subject of submissions on the appeal was whether the requirement in s.18C(1)(b) was made out. That is, whether the act constituted by the etching was done “because of the race, colour or national or ethnic origin of ... some or all of the people in the group”.
 In Hagan Trustees of the Toowoomba Sports Ground Trust 11 a Full Court of the Federal Court of Australia held12:
“Section 18C(1) of the RDA makes it unlawful for a person to do an act if the conditions in both par (a) and (b) are satisfied. The first condition relates to the quality of the act in question. The second relates to the reason or reasons for which the act is done (see s 18B). ... Section 18C(1) is not enlivened unless the relevant act is done “because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act”. As earlier indicated, the phrase “because of” requires consideration of the reason or reasons for which the relevant act was done.”
 A more recent appellate authority on the requirement in s.18C(1)(b) is the decision of the Full Court of the Federal Court of Australia in Toben v Jones 13 which affirmed the decision of Branson J at first instance14.
 Branson J had dealt with the requirement in s.18C(1)(b) as follows:
“97 It is necessary to determine whether the act of publishing on the World Wide Web the material identified in  above was an “act done because of the ... ethnic origin” of the groups which I have identified above.
98 In Jones v Scully at  Hely J said:
“The phrase “because of” requires consideration of the reason or reasons for which the relevant act was done: Hagan (Full Federal Court)  FCA 123; (2001) 105 FCR 56 at 60. It is important to note that if an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of a person or group of people, whether or not it is the dominant reason or a substantial reason for doing the act: s 18B. The applicant submits that the test to be applied in a consideration of s 18C(1)(b) is whether race is a “material factor” in the performance of the act. In Creek, Kiefel J notes at pars  -  that there have been differences of opinion expressed about the meaning of phrases such as “on the ground of” and “by reason of” in the context of discrimination legislation. It is not necessary for me to repeat what her Honour said there, except to say that, at the end of her discussion of the relevant authorities, her Honour adopted an approach to s 18C(1)(b) which enquired into whether “anything suggests race as a factor in the respondent’s decision to publish” the work in question. I respectfully propose to follow that approach.”
I also propose to adopt the approach adopted by Kiefel J in Creek v Cairns Post Pty Ltd.
99 In my view, it is abundantly clear that race was a factor in the respondent’s decision to publish the material set out in  above. The material includes many references to Jews and events and people characterised as Jewish. It is particularly concerned with the Holocaust and with the conduct of German forces during World War II, matters of particular importance to Jewish people. It is, in my view, plainly calculated to convey a message about Jewish people (see Jones v Scully per Hely J at -).
100 I am satisfied that the act of publishing on the World Wide Web the material set out in  above was done because of the ethnic origin, namely the Jewishness, of the people in the groups which I have identified above (see  and ).”
 On appeal, each member of the Full Court delivered a separate judgment. Carr J endorsed 15 the approach of Kiefel J in Creek v Cairns Post Pty Ltd. Kiefel J made further observations on that approach. Her Honour observed16:
“61. ... In my view a causal connexion was required by s 18C(1)(b) and the relevant enquiry was as to what was the reason for the conduct in question. This would be consistent with the references in s 18B to the reasons for an act. I respectfully followed the test propounded by McHugh J in Waters (at 400-401) in relation to the phrases `on the ground of' and `by reason of'.”
62 An enquiry as to the reason for a person’s conduct requires consideration of their motive, or as McHugh J said in Waters at 400-401, ‘The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did’. It was from his Honour's statement that I drew the question which I considered relevant to the facts in Creek v Cairns Post and which appears in the following passage (at ):
“In the present case the question is whether anything suggests race as a factor in the respondent’s decision to publish the photograph. The context of the article is of course race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race can be taken to have actuated the publication. It is something which commonly occurs in media reports. Rather the inquiry is whether the publication of a photograph, showing the applicant’s apparent living circumstances, was motivated by considerations of race.”
63 The inquiry as to motive or reason is not however limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. The enquiry is as to the true reason or true ground for the action (see Banovic at 186, per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.
64 It is, I think, important to bear in mind with respect to the question posed by s 18C(1)(b), that it is a separate question and not one to be combined with the enquiry under subs (1)(a) as to whether a statement or other conduct is likely to offend or insult a group. More is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason. It will in each case be necessary to carefully consider the statements or other conduct and any other relevant evidence with the enquiry of subs (1)(b) in mind and to determine if any apparent motives have the quality the legislation is concerned with.” (original emphasis)
 Kiefel J also noted that the requirement in s.18C(1)(b) “cannot be made out by assumptions as to motive, as distinct from inferences which may properly be drawn.” 17
 Allsop J stated:
“150 ... The statute requires there to be a reason. As the Full Court (of which Hely J was a member) said in Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 123; (2001) 105 FCR 56 at 60 :
“Section 18C(1) is not enlivened unless the relevant act is done “because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act”. As earlier indicated, the phrase “because of” requires consideration of the reason or reasons for which the relevant act was done. Counsel for Mr Hagan submitted that in discrimination legislation it is accepted that it is unnecessary for a complainant to prove motive or intention. Whether that be so or not, the expression “because of” in par (b) necessitates a consideration of the reasons for which the act in question was done.”
151 It is the reason or reasons for the act which must be discerned. Here the act was the publication of the Document. An investigation of the reason or reasons for the act will involve, as a matter of meaning and language, an enquiry into the explanation for the act or why the act was done. Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct (cf Kapoor v Monash University  VSCA 247; (2001) 4 VR 483, 494 - 95  - ; and the University of Ballarat v Bridges  2 VR 418, 424), proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament. I do not see Kiefel J as having been attempting to widen the requirement of par 18C(1)(b) as described in Hagan by the Full Court. Her Honour does not appear to have had the Full Court decision in Hagan cited to her; nevertheless, immediately before the passage highlighted by the appellants (see  above) Kiefel J directed herself, correctly in my respectful view, to the need for an enquiry into the reason or reasons for the act (expressing herself in terms of a causal requirement)...
152 Thus, I would not read the passage in Kiefel J's reasons in Creek set out at  above as departing from a need for an enquiry as to the reason or reasons for the act as stated by the Full Court in Hagan. I would not read Hely J (a member of that Full Court) in Jones v Scully as departing from what the Full Court said in Hagan; nor would I read what the primary judge said here (her Honour having quoted the whole of the relevant paragraph of Hely J's reasons in Jones v Scully, which itself referred to the Full Court in Hagan) as departing from what the Full Court said in Hagan.”
 It may also be noted that the Full Court rejected an argument that the language of s.18C should be read down to so as to require that the act complained of be done because of “racial hatred”. 18
 Thus, on the existing authorities, the requirement in s.18C(1)(b) calls for a consideration of the reason or reasons for which the relevant act was done. The requirement in s.18C(1)(b) will be met in this case if the reason, or one of the reasons, for which the etching was done was the Jewish ethnicity of some or all of the persons in the Group.
 Counsel for the appellant submitted that intention was irrelevant to whether or not an impugned act contravenes s.18C. While it is clear that the intention of the person who committed the impugned act is irrelevant to the requirement in s.18C(1)(a) and that intention is not a necessary element in establishing the requirement in s.18C(1)(b), as explained by Allsop J in paragraph  of the passage from Toben v Jones set out above, this does not mean that intention will always be irrelevant to determining whether the requirement in s.18C(1)(b) has been satisfied. A person’s reason for doing an act will often, if not usually, be linked to their intention, purpose or motivation in doing the act. The reason or reasons for the doing of the impugned act is a question of fact to be determined on all the relevant evidence. Of course, in a particular case the evidence may establish that a person had a reason different from the reason they claim. Once the person’s reason for doing the impugned act has been established, the question becomes whether, objectively determined, that reason can properly be said to causally related to the race etc. of the relevant group in the relevant sense. Logically, this may be so even if the person does not have an actual intention to racially etc. vilify.
 It is clear from these authorities that an intention to racially vilify is not a necessary element of a contravention of s.18C. To the extent that the Commissioner proceeded on the basis that whether the conduct of the employee involved a breach of the RD Act turned on whether or not the employee “was acting with an intention to vilify Jews or any other race or creed of people” 19, the Commissioner’s decision is affected by error.
 On appeal, Counsel for the Appellant submitted:
“...[R]egardless of whether Mr O'Loughlin knew that the owners of the company were, in fact, Jewish, that even if intention is an element - the relevant intention is whether or not he did the act with some regard or some factor involving the race of Jewish people of the ethnic situation of Jewish people. ... That is, was it intertwined or interconnected inextricably really with the events surrounding the treatment of Jewish people under the Nazis in the context of the Holocaust and it seems that the very findings of the Commissioner support that view because there was a corollary being drawn between the conditions in the freezer room and the conditions that Jewish people faced during the operation of the Nazi regime in the Second World War and beforehand. So that there was an inextricable link between the purpose of making the statement - the almost metre high Swastika and the circumstances that faced Jewish people on concentration camps and the like.” 20 (emphasis added)
 And again:
“Now, clearly, in this case, race was a factor in the decision to make the publication in question because it was intended to draw a parallel or a comparison between the working conditions of [VersaCold] and the conditions [faced] by the Jews in Nazi Germany.” 21 (emphasis added)
 Counsel supported that submission by reference to the Commissioner’s finding in relation to the etching that “the swastika connotes (sic) the ‘hell’ of the words with the oppressive nature of the working conditions in the freezer room.” 22, continuing:
“And then 26 - although he says it's ironic, the Commissioner found that when used in this context the Swastika was utilised as reinforcement or reminder of the hell and suffering of the oppression of the Holocaust. What the Commissioner was doing was focusing on whether there was an intent to hurt or offend or humiliate Jewish people, not on the intention to draw the comparison or to draw the link between - with the circumstances of the Holocaust and the working conditions faced by the victims of that terrible tragedy. ... And the drawing of the comparison between the circumstances of working in a freezer room for a first world company in a first world country with those circumstances is really quite insulting and it trivialises the circumstances that those people faced. And there was considerable evidence before the Commissioner as to how that connection had affect and was likely to have an affect. ... Again, underlying the mistake that the Commissioner made by looking to whether there was an intention to offend or hurt rather than whether or not the act was done because of or for any reason connected with race. 23 (emphasis added)
 It should be observed that there was no evidence called in relation to the significance or meaning attached to the swastika in contemporary Australia. Nor was there any evidence called in relation to the Holocaust, the Nazi concentration camps and their victims or in relation to the crimes of the Nazis more generally. In the absence of evidence, we do not think that we can proceed on the basis of the submissions of Counsel for the appellant that Jewish people were the sole victims of the Nazi concentration camps such that the only reason a person could draw a swastika for the purpose of evoking a connection with the “hell” of the concentration camps was because of the Jewish ethnicity of their victims. As we understand the historical fact, while Jewish people were the preeminent category of victim subjected to the hellish conditions of the concentration camps (and without in any way seeking to downplay the unspeakable enormity of the Holocaust), non-Jewish victims of the Nazi concentration camps (Soviet prisoners of war, (non-Jewish) ethnic Poles, gypsies, disabled people, homosexuals, freemasons etc) numbered in the many millions.
 In short, we are not persuaded on the basis of the submissions of Counsel for the appellant that it must be concluded that a reason why the employee in this case etched the swastika is “because of the [Jewish race] of some or all of the people” in the Group.
 In this case, the employee admitted that he was seeking to draw a comparison with Nazi concentration camps. He noted that the swastika he etched (a vertical swastika), was different from the Nazi swastika (drawn at an angle), apparently a matter pointed out to him by a solicitor after the event, but then gave the following evidence of his reason for drawing the swastika 24:
“... I just did it to indicate to my fellow work friend that working in this environment, which it was, was like working in hell. What the poor people were put through in the concentration camps, it was hell working there. Our fingers froze up. Our toes used to froze up. I thought it was quite a dangerous environment to work in. It was just an indication between me and another workmate that this was working in hell.”
 This evidence was not challenged in cross-examination and APS did not seek to lead any evidence to contradict it. It is clear that the Commissioner accepted this evidence 25. There is no suggestion that the employee was aware than any of the staff, employees, customers or cleaning contractors of VersaCold were Jewish or that any of the staff or employees of APS were Jewish. There is no suggestion that he ever turned his mind to that question in connection with the making of the etching.
 On the evidence before the Commissioner, there was only one reason for the employee making the etching, namely to criticise the working conditions in the VersaCold warehouse by comparing them to conditions in a Nazi concentration camp. It may readily be accepted, as was submitted by Counsel for the appellant, that the etching trivialised the circumstances of the victims of the Nazi concentration camps. However, on the evidence before the Commissioner, the employee etched the swastika and the words “Welcome to Hell” because, notoriously, the conditions in Nazi concentration camps were hellish, not because Jews were the preeminent category of Nazi victims in the concentration camps. It follows that the employee’s reason for making the etching was not “because of” the race or ethnicity of the Group as required by s.18C(1)(b). The requirement in s.18C(1)(b) is not made out.
Anti-Discrimination Act 1977 (NSW)
 The notice of appeal also contends that the Commissioner erred in failing to find that the conduct of the employee constituted a breach of s.20C of the Anti-Discrimination Act 1977 (NSW). That Act relevantly provides:
“20B Definition of “public act”
In this Division,
“public act” includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
20C Racial vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
 At the hearing of the appeal counsel for the appellant focussed on the alleged breach of the RD Act and did not advance any oral submission in support of the ground of appeal based on the Anti-Discrimination Act 1977 (NSW).
 The word “public” in s.20B(a), (b) and (c) has its ordinary meaning as a noun.
 We are not satisfied that the etching by the employee was a “public act” within the meaning of s.20B of the Anti-Discrimination Act 1977 (NSW) and, consequently, there cannot have been a breach of s.20C. In particular, the etching was not a “communication to the public” or “observable by the public” and did not involve a “distribution or dissemination ... to the public”.
Summary in relation to alleged breach of anti-discrimination legislation
 The Commissioner was correct to conclude, even if for the wrong reasons, that the breach of anti-discrimination legislation relied upon by APS in the termination letter as a reason for dismissal was not a valid reason.
Other issues in relation to the finding of “no valid reason”
 Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).
 The Commissioner concluded that, because there was no breach of the RD Act or AD Act as alleged by the APS, there was no valid reason for dismissal. In this respect the Commissioner erred. The Commissioner’s finding that there was no breach of the anti-discrimination legislation was not the end of the relevant enquiry. The Commissioner found that the etching involved misconduct, indeed, “serious misconduct”. Although the short oral submission of the advocate for APS at the hearing before the Commissioner focussed on APS’s contention that the conduct of the employee breached the anti-discrimination legislation, it is more than tolerably clear that APS was relying on the etching as constituting misconduct that amounted to a breach of the anti-discrimination legislation 26. It follows that the Commissioner erred in failing to consider whether the misconduct that he found constituted a valid reason for the dismissal.
 We are satisfied that in making the etching the employee engaged in misconduct. We accept that the etching was insulting and offensive to the owners of VersaCold, and would have been insulting and offensive even if they were not Jewish. However, we are not persuaded that the making of the etching constituted “serious misconduct” when that expression is given its meaning as a term of art in employment law. Nevertheless, it was a species of misconduct such that it was correct for the Commissioner to proceed on the basis that there was a valid reason for the dismissal.
 It was also submitted that the Commissioner erred in failing to consider whether the employee’s initial denial, when questioned by management, that he was responsible for the etching involved dishonesty and was a separate species of misconduct constituting a valid reason for dismissal.
 On the appeal, counsel for APS relied upon the termination letter in submitting that the Commissioner was on notice that APS relied upon the employee’s false initial denial as a reason for termination and that the Commissioner should have considered this in deciding whether there was a valid reason for the dismissal. We cannot accept that submission. After an introductory paragraph, the termination letter has 4 sections, each with its own underlined heading. Those section headings are “Grounds for termination”, “Opportunity to Respond”, “Consideration of Responses” and “Advice of Outcome”. While there is a reference in the “Opportunity to Respond” section to the employee acknowledging that he knew he had “lied on 2 occasions to Sherry Little”, the termination letter expressly identifies the grounds or reasons for the dismissal in a separately headed section and it does not identify the false initial denials as a reason. The employee’s initial false denials are not mentioned in the Form F3 “Employer’s Response to Application for an Unfair Dismissal Remedy” and that alleged dishonesty were not a reason for dismissal relied upon by the advocate for APS during the hearing before the Commissioner. Indeed, as the Commissioner’s decision records, the representative of the APS at first instance expressly confirmed that APS relied only upon the misconduct constituting an alleged breach of anti-discrimination legislation and not any other reason.
 In these circumstances there was no error in the Commissioner failing to deal with the initial false denials as a reason for dismissal. In any event, even if we had considered the employee’s initial false denials as a separate species of misconduct it would not have resulted in us reaching a different conclusion. It is trite that dishonesty on the part of an employee may constitute misconduct that provides a valid reasons for dismissal. We accept that the Commissioner arguably erred in failing to deal with that argument 27. However, we note that such dishonesty will not automatically render a dismissal based upon it a dismissal that is not harsh, unjust or unreasonable. An illustration is provided by the decision of Buchanan J in McDonald v Parnell Laboratories (Aust)28. In that case the Court was required to consider whether an employee who had been dismissed for “dishonesty in a response [she] gave to [a manager] in answer to an instruction to state her times of attendance over the previous three weeks” had engaged in “wilful, serious or persistent misconduct” within the meaning of a term of her contract of employment, such as to justify dismissal without notice in accordance with that term. Buchanan J reviewed the law relating to summary dismissal for “serious misconduct” at common law. It is clear from his Honour’s reasons that what he described as the as “a single foolish (dishonest) act” did not amount, in the circumstances of that case, to “serious misconduct” justifying summary dismissal at common law29. As in McDonald, in this case there was no ‘actual repugnance’ between the employee’s conduct in making the etching and the maintenance of confidence between him and APS. As in McDonald, it was a single foolish act undertaken in circumstances where neither APS nor VersaCold had taken in any action in response to similar offensive acts. In our view, in all the circumstances, the conduct cannot be regarded as a sufficiently serious breach of contract such as to indicate that the employee no longer intended to be bound by the contract. It was not an act of sufficient seriousness to bring the case within the additional class where summary dismissal is justified notwithstanding that the event was unlikely to be repeated and therefore not indicative of the employee the employee was intending not to perform contractual obligations in the future30.
Was the dismissal harsh, unjust or unreasonable?
 The Commissioner accepted, as he was entitled to do, that the employee was unaware that any of APS’s or VersaCold’s officers or staff were Jewish and that the he did not intend any offence to Jewish people when he made the etching (albeit that it subsequently emerged that the employee in fact had anti-Semitic views that many people would find offensive). The etching was intended as commentary on working conditions in the freezer room which were being compared - in an offensive way - to conditions in a Nazi concentration camp. The etching was in ice that had accumulated on the freezer door. The etching did not involve any damage or permanent marking of the warehouse premises and was capable of being easily erased.
 Even if, contrary to what we have found, the etching did involve a breach of s.18C(1)(b) of the RD Act, it was, on any view, a breach at the lower end of the scale. Moreover, while it may be that a relevant breach of the anti-discrimination does not require an actual intention to vilify; this does not mean that the issue of intention is irrelevant to a consideration of whether a dismissal for conduct alleged to constitute such a breach was harsh, unjust or unreasonable within the meaning of the FW Act. Whether there was intention to offend others by way of racial vilification is a matter that bears upon the relative seriousness of the misconduct and is thus relevant to a consideration of whether the dismissal was harsh.
 The employee relied on the failure by VersaCold and/or APS take action at an obscene and offensive etching on the freezer door by another employee. The employee gave the following evidence that was not challenged in cross-examination or contradicted by evidence called by APS 31:
“I’ve seen with my own eyes, and some of the bosses of VersaCold too, a body of a woman with part of a male’s anatomy protruding into the mouth and other things, and bosses have looked at them and just laughed about it. ... There’s one guy over there, Brett, over at VersaCold I was told the day I went to clean my locker out that this actual guy had done something like that the day before and wrote Brett's name up there and Brett come up and said, “Did you do that,” and he said, “Yes,” and they just laughed about it and walked away.”
 In circumstances where etchings of that sort had not attracted a disciplinary response, the etching made by the employee involved misconduct that ought be viewed as relatively minor.
 Given the relatively minor nature of the misconduct, the advancing age of the employee and the length of his employment we are satisfied that the Commissioner was correct to conclude that the dismissal was at least harsh notwithstanding the existence of a valid reason for dismissal, particularly given the failure of VersaCold and or APS to act in relation to previous instances of offensive etchings in the ice on the freezer door. Had APS demonstrated a consistent approach to behaviour of this nature, we may have arrived at a different position.
 We are not persuaded that this is a case where it is in the public interest to grant permission to appeal. None of the particular factors identified by the Full Bench in GlaxoSmithKline are present in this case. In particular, we note that while there is at least an arguable case of error on the part of the Commissioner, we are not satisfied that the decision at first instance was manifestly unjust because, for the reasons we have given, the Commissioner ultimately reached the correct conclusion that the dismissal was harsh. As is apparent, if we had granted permission to appeal we would have reached the same conclusion as the Commissioner on whether the dismissal was harsh, unjust or unreasonable. We would have agreed with the Commissioner’s assessment that a remedy was appropriate. We can see no proper basis for interfering in the Commissioner’s decision in relation to remedy. The Commissioner ordered compensation equivalent to four weeks’ pay when the maximum amount of compensation is 26 weeks’ pay. The relative modesty of that award no doubt reflected the surrounding circumstances including the employee’s initial false denials and anti-Semitic sentiments expressed during the disciplinary interview.
 Leave to appeal is refused. A stay order made by Vice President Lawler lapses upon the making of this decision. The order of the Commissioner stands and must now be complied with.
DECISION OF SENIOR DEPUTY PRESIDENT O’CALLAGHAN
 I have had the opportunity to consider the decision of the majority in this matter. While I agree with that conclusion, I must, with respect, differ in terms of my approach to this appeal. I have set out my brief separate reasons for the decision.
 I agree with, and adopt the background to the matters set out in the majority decision. I also agree with the majority conclusion 32 to the effect that the termination of employment letter expressly addressed the allegation that Mr O’Loughlin lied to the employer but concluded that the termination of employment decision was not based on this behaviour.
 I consider that the central issue in this matter is the uncontested evidence of Mr O’Loughlin that:
“I’ve seen with my own eyes, and some of the bosses of VersaCold too, a body of a woman with part of a male’s anatomy protruding into the mouth and other things, and bosses have looked at them and just laughed about it. ... There’s one guy over there, Brett, over at VersaCold I was told the day I went to clean my locker out that this actual guy had done something like that the day before and wrote Brett's name up there and Brett come up and said, “Did you do that,” and he said, “Yes,” and they just laughed about it and walked away.”
 In light of this evidence, in the absence of any evidence relating to a consistent disciplinary approach on the part of APS or VersaCold to offensive etchings or drawings, I consider that the Commissioner was correct to conclude that Mr O’Loughlin’s dismissal was harsh. Had evidence of a consistent approach been provided, a review of the nature proposed by the majority would have undoubtedly been necessary.
 Consequently, in all the circumstances of this matter, I do not consider it necessary that I express a conclusion with respect to the primary issue argued by APS on appeal. Irrespective of the Commissioner's finding that there was no valid reason for the termination of employment, the inconsistency of approach to disciplinary issues on the part of APS means that the Commissioner's ultimate conclusion neither manifests an injustice, nor results in a counter intuitive or disharmonious outcome.
 On this basis, I endorse the conclusion that permission to appeal should not be granted and that the appeal should be dismissed.
SENIOR DEPUTY PRESIDENT
S. Prince of Counsel, for APS Group (Placements) Pty Ltd.
S. O’Loughlin appeared in person.
1  FWA 7367
3  FWAFB 5343
4 See Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at  and 
5 (1936) 55 CLR 499 at 504-5
6 Jones v Toben  FCA 1150 at , Jones v Scully (2002) 120 FCR 243 at ; Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 1615; Creek v Cairns Post Pty Ltd  FCA 1007 at 
7 Jones v Scully (2002) 120 FCR 243 at  per Hely J
8 (2002) 71 ALD 629; (2002) EOC 93-247;  FCA 1150
9  FCA 1150 at para 
10 Miller v Wertheim  FCAFC 156 at , see also Jones v Scully  FCA 1080 at - per Hely J and Jones v Toben  FCA 1150 at 
11 (2001) 105 FCR 56
12 (2001) 105 FCR 56 at . 
13 (2003) 129 FCR 515
14 Jones v Toben (2002) 71 ALD 629 ; (2002) EOC 93-247 ;  FCA 1150
15 (2003) 129 FCR 515 at 
16 (2003) 129 FCR 515 at 
17 (2003) 129 FCR 515 at 
18 (2003) 129 FCR 515 at  per Carr J,  per Kiefel J, and - per Allsop J
19  FWA 7367 at 
20 Appeal Transcript at PN143-5
21 Appeal Transcript at PN169
22  FWA 7367 at 
23 Appeal Transcript at PN173-7
24 Transcript at PN115
25 See especially para 
26 See especially transcript at PN508
27 We say arguably because, on one view, APS did not press that reason for dismissal before the Commissioner.
28  FCA 1903
29  FCA 1903 esp at 
30 See Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 (per Gillard J) at ff esp at 
31 Transcript at PN119-120
32 Majority decision, paragraph 
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