| [2016] FWCFB 7191 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
SYDNEY, 24 OCTOBER 2016 |
Permission to appeal against decision [2016] FWC 5990 of Deputy President Booth at Sydney on 5 September 2016 in matter number U2016/5971.
Introduction and background
[1] On 16 September 2016 Anglican Community Services (ACS), formerly known as Anglican Retirement Services, lodged a notice of appeal in which permission to appeal was sought under s.604 of the Fair Work Act 2009 (FW Act) in respect of a decision of Deputy President Booth issued on 5 September 2016 1 (Decision). In the Decision, the Deputy President found that Ms Daisy Shawl’s dismissal by ACS was harsh, unjust and unreasonable, and determined that ACS should pay Ms Shawl compensation in the amount of $16,020.26, less applicable taxation. A separate order2 (Order) was issued giving effect to the Decision. By consent, the Decision and Order were stayed on 28 September 2016 pending the hearing and determination of the appeal.
[2] The factual background to the matter was as follows. Ms Shawl was employed by ACS as a carer at an aged care facility at Castle Hill in Sydney in 2001. She was dismissed on 22 March 2016, with five week’s pay in lieu of notice, for gross misconduct. That gross misconduct was said to be that on 10 March 2016 Ms Shawl had slapped a resident, Mr Lawrence Foley, in the course of attending to him. Ms Shawl denied that she had done this. The person who allegedly witnessed the slap, and who reported it, was Ms Marie Jimenez, another worker at the facility. Mr Foley was unable to say anything about the incident one way or the other because he suffered from dementia.
The Decision
[3] In the Decision, the Deputy President identified the critical issue before her as being “on the balance of probabilities, whether the conduct complained of actually happened”. 3 The witnesses called by ACS were Ms Jimenez, Mr Richard Farmilo, the Facility Manager, and Mr Simon Heath, ACS’s Regional HR Manager. Mr Farmilo and Mr Heath investigated the incident and jointly made the decision to dismiss Ms Shawl. In the Decision, the Deputy President gave detailed summaries of the evidence of Ms Jimenez, Mr Farmilo and Mr Heath4, and described a physical demonstration of the incident given by Ms Jimenez.5 The Deputy President also described Ms Shawl’s own physical demonstration of the incident.
[4] The Deputy President’s reasoning and conclusion with respect to the alleged incident, and the evidence about it, were as follows (omitting footnotes):
“[25] When there are two conflicting versions of an event it is necessary to weigh the likelihood of one version being more probable than the other. Ms Jimenez’s version of what occurred is that Mrs Shawl slapped Mr Foley on the mouth with such force as to make a sound which could be heard by her whilst standing behind Mr Foley and which caused his head to move backwards.
[26] First I have considered whether there was any objective evidence of this occurring such as a mark on Mr Foley or any other injury to Mr Foley. The evidence of Mr Farmilo is that there was not.
[27] Secondly I have considered whether there was any corroborative evidence such as a complaint by Mr Foley, an acknowledgement by Mr Foley, a third person over hearing the incident, a contemporaneous note or complaint being made by Ms Jimenez. Mr Farmilo’s evidence is that there was no corroborative evidence from Mr Foley. It was Ms Jimenez’s evidence that after the incident she proceeded to carry out her usual duties of supporting residents with their evening meal and she then took her own meal break. It was after these activities that she reported the incident to the registered nurse. When questioned as to this delay she said it was because she was very busy when the incident happened and only had time to report the incident after dinner.
[28] Thirdly I have considered whether there was any tendency or co-incidence evidence as regard to Mrs Shawl’s behaviour on any other occasion. In other words, I have considered whether here has been any other complaint made or issue raised about Mrs Shawl having been violent or abusive or losing her temper with a resident. The only matter that was brought to my attention was an occasion in December 2015 when Mrs Shawl was alleged to have forcibly administered medication to a resident when the resident attempted to refuse to take the medication. The respondent said that this incident gave rise to Mrs Shawl receiving a disciplinary warning.
[29] Mrs Shawl’s evidence before me was that she placed her left hand on Mr Foley’s shoulder and placed her right hand near Mr Foley’s mouth (but not touching his mouth), saying “ssh, please calm down.” This version of events is consistent with her version of events given to Mr Farmilo and Mr Heath during their investigation. That evidence included a demonstration of what she said she did, each demonstration being consistent.
[30] I give particular weight to her evidence before me and her initial statements to Mr Farmilo and Mr Heath.
[31] Mrs Shawl’s account of what happened contained in her Form F2 application to the Commission and in her witness statement were not consistent with these accounts.
[32] In her Form F2 application to the Commission and in her witness statement she said that she placed her two fingers vertically against her own mouth and said “shh”. I have concluded that Mrs Shawl did not write those accounts in either document. It became clear to me during her oral evidence that she was assisted in the preparation of those documents and did not seek to maintain this version of events during her evidence. I prefer her oral evidence.
[33] On the basis of the analysis I have undertaken concerning the two competing versions of events I am unable to conclude, on the balance of probabilities, that the conduct occurred.”
[5] On the basis of the above conclusions, the Deputy President concluded under s.387(a) that there was no valid reason for the dismissal. The Deputy President went on to deal with the other matters required to be considered under s.387, and her consideration under s.387(h) included the following:
“[49] The Respondent submitted that I should take into account Mrs Shawls “attitude in denying any and all misconduct” in connection with the incident of 10 March 2016, her “lack of remorse or candour throughout the investigation” and the fact that her conduct exposed the respondent to possible sanction and reputational damage. In light of my finding that the conduct in question did not occur these submissions have no merit.”
[6] The Deputy President went on to conclude, substantially on the basis of there being no valid reason for the dismissal, that the dismissal was harsh, unjust and unreasonable, and assessed the amount of compensation to be paid (Ms Shawl having not sought reinstatement).
Appellant’s submissions
[7] ACS’s notice of appeal and submissions contended, in summary, that the Deputy President erred in the following respects:
(1) by failing to find that Ms Shawl struck Mr Foley across the mouth and therefore that there was a valid reason for the dismissal;
(2) by finding in paragraph [27] of the Decision that there was a lack of a “contemporaneous note or complaint made by Ms Jimenez”, in circumstances where Ms Jimenez did make a complaint;
(3) by taking into account or giving too much weight to the fact that there was no mark on Mr Foley’s face, when there was no medical or other evidence to establish that the slap would have left a mark or that, if it did, such a mark would still be visible at the time Mr Foley was examined;
(4) by taking into account or giving too much weight to the fact that there was no complaint by Mr Foley, in circumstances where he was suffering from advanced stages of dementia;
(5) by taking into account or giving too much weight to the lack of any previous conduct of a similar nature on the part of Ms Shawl, in circumstances where ACS’s zero tolerance approach to such conduct meant that if such conduct had occurred earlier Ms Shawl’s employment would not have continued, and where the lack of any previous such conduct did not rationally mean that Ms Shawl did not engage in the conduct alleged on 10 March 2016;
(6) by not addressing ACS’s submissions concerning Ms Shawl’s credit as a witness, having regard to various inconsistencies in her evidence and admissions that she made, and/or failing to provide adequate reasons for the rejection of those submissions; and
(7) by not taking into account or giving proper weight to Ms Shawl’s admission that she lied to ACS during the investigation/disciplinary process concerning her prior dealings with Ms Jimenez, which constituted an independent and valid reason for her dismissal.
[8] ACS submitted that it was in the public interest to grant permission to appeal because:
Consideration
[9] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[11] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment8. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 9
[12] 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. 10 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11
[13] In respect of ACS’s application for permission to appeal, the primary consideration is whether any arguable case of error is disclosed. In this respect, we will consider the seven contentions of error advanced by ACS which we have earlier identified in turn. The first is simply a complaint about the ultimate finding concerning the alleged slap and does not identify any specific error of fact or law in the Deputy President’s assessment of the evidence and submissions.
[14] The second has no substance. The statement in paragraph [27] of the Decision that there was no contemporaneous note or complaint on the part of Ms Jimenez is to be read, as the balance of the paragraph makes clear, a reference to the fact that after allegedly seeing Ms Shawl slap Mr Foley, Ms Jimenez simply proceeded with her normal duties for some time and took her meal break before she reported the matter to her supervisor some hours later. It was not suggested by ACS that there was any factual dispute in that connection. Given the seriousness of what Ms Jimenez allegedly witnessed, we consider that her delay in reporting it was a relevant matter which the Deputy President was entitled to take into account.
[15] In relation to the third contention of error, we also consider that the Deputy President was entitled to take into account that there was no mark on Mr Foley’s face when he was physically inspected the evening of the incident. That was not an irrelevant consideration, given that Ms Jimenez’s description was of a slap which was clearly audible and forced Mr Foley’s head backwards. If the Deputy President had treated the lack of any physical mark as definitive evidence that Ms Jimenez’s account of the alleged slap was untrue, then it might be accepted in the absence of any medical evidence concerning the expected physical effect of the alleged slap that ACS had demonstrated an arguable case of appealable error. But the Deputy President did not go anywhere near that far; she simply pointed in paragraph [26] of the Decision to there not being any “objective evidence” of the slap. That was an indubitably correct statement. We regard the fourth contention of error as falling into a similar category. The fact that Mr Foley could not give evidence about the incident, corroborative or otherwise, was likewise an indubitably correct statement. It was relevant because it served to emphasise that it required acceptance in whole of Ms Jimenez’s evidence in order to permit a positive finding that Ms Shawl had slapped Mr Foley.
[16] Concerning the fifth contention, we consider that it was relevant for the Deputy President to take into account whether, over approximately 15 years of employment, there was any evidence that Ms Shawl had ever engaged in any conduct of a violent, abusive or intemperate nature. The weight to be assigned to that consideration was a matter for the Deputy President, and it is not sufficient to demonstrate appealable error to contend simply that a particular consideration should have been given more or less weight. 12 The fact that ACS had a “zero tolerance” approach to abusive behaviour did not render as being of no weight at all the fact that Ms Shawl had not on the evidence ever engaged in such behaviour before.
[17] The sixth contention of error needs to be considered having regard to the findings made by the Deputy President at paragraphs [30]-[32] of the Decision, which we have earlier set out. In that part of the Decision, the Deputy President dealt directly with the difficulty that there were factual discrepancies between her unfair dismissal remedy application and witness statement on the one hand, and her statements to ACS during the investigation/disciplinary process and her oral evidence on the other hand. The Deputy President’s assessment was that weight was to be given to Ms Shawl’s oral statements, but that she did not personally write her application or her witness statement, that others had assisted her in this respect, and that she did not maintain what was stated in these documents in her evidence.
[18] Having perused the transcript, it is readily apparent to us that Ms Shawl had significant difficulty in understanding much of what was put to her in relation to the contents of her witness statement and her application. Ms Shawl is of Indian origin, and although there was no mention of it in the Decision, we were told that English is her second language. This may explain much of the difficulty. Ms Shawl was also not legally represented, but was represented by her son. As an example of the difficulty, the transcript discloses that, when the Deputy President asked Ms Shawl at the outset of her oral evidence to attest to the veracity of her witness statement, the following exchange occurred:
THE DEPUTY PRESIDENT: Mrs Shawl, a witness statement has been prepared on your behalf, you have signed it. It was signed on 2 June 2016, it has got 23 paragraphs and four attachments. Do you recall that statement?---Yes, I do.
Can you speak up a little bit so that the recorders can hear you. Do you recall making that statement? Would you like to have a look at the copy that I've got, because I see you haven't got anything with you, it's important that you do know what it is that you're agreeing to as being correct. 2 June is a little while ago.
MR SHAWL: Is it the one Michael wrote on our behalf, Mum?---Yes, I know this.
THE DEPUTY PRESIDENT: Is it still your recollection, sitting here today, that that statement is true and correct?---That was not truth actually.
I need you to speak up, what did you say?---I said that was not truth actually.
This statement is not correct?---No, the statement is all right.
MR SHAWL: That's all she is asking, Mum. She is asking what's in there is right?---That one is correct. 13
[19] One could not be confident from the above exchange that Ms Shawl was actually attesting to the truth of the content of the document which went into evidence as her witness statement, or that she fully comprehended what was being asked of her. This difficulty continued throughout her evidence. The following exchange is a further example:
...You have signed that statement down the bottom?---That's my signature, yes.
That is your signature. And in signing your statement, you say that what is in the statement is true and correct?---Yes.
Did you write this statement?---Yes.
You wrote it yourself?---I didn't all of this, I think Richard wrote this one.
I am sorry, who wrote the statement?---Richard.
MR SHAWL: No, no, Richard didn't write it.
THE WITNESS: You write it?
MR SHAWL: No, no, this one.
THE WITNESS: Yes, we write it, I think.
MS BOWE: If I could just ask that she answer the question.
MR SHAWL: Sure.
MS BOWE: So you didn't write this statement?---Yes, I write the statement.
MR SHAWL: I think she's a bit confused. 14
[20] Similar problems arose in Ms Shawl’s evidence in relation to contents of the unfair dismissal remedy application, aggravated by the fact that there were apparently two versions of it. For example:
You remember completing a Form F2 like this and sending it to the Commission in April of this year, can I show you that. Did you complete that? There's some typing in the fields there, did you do that, typing?---That's unfair.
It's your unfair dismissal application?---Yes.
Do you remember - did you do the typing that filled out the form?
MR SHAWL: Deputy President, if I may interject. I was the one who typed it up for her, so I was getting her recount of events that occurred on the day. The witness statement that has been presented by - as you can see - is by Michael Alkan. This was done over the phone and also within the evidence that has been provided as well in terms of the application, so he has taken information from that as well as other statements through verbal conversations.
THE DEPUTY PRESIDENT: I will come back to it, because they are questions obviously I can ask you and we can form a view as to whether you want those to be dealt with under oath or via submission.
MR SHAWL: No problem.
THE DEPUTY PRESIDENT: Let me just clarify this: the form that you have got in front of you, you didn't have any hand in actually writing anything in that form, is that what you're saying to me?---Just we rang - - -
You spoke to your son?---We spoke on the phone and then we talk to them on the phone.
Just pass that back to me, would you, for a moment. Did you know that there were two forms that were submitted on your behalf. I don't know. My son already handle everything, he was the one with me always and doing the things.
I will let the record show that there was no signature on the original Form F2. You did not sign the original Form F2, it is just a typed name?---I never sign.
Just to clarify. Everything that is in the Form F2 came onto the page by someone else typing it after they listened to what you said to them, is that correct?---Yes, yes.
Do you remember that there was a second Form F2 that was completed a month later, do you remember that?---The second one, too.
I only want to know if you remember?---I don't remember, I'm not sure.
Actually it was about three weeks later. You're not sure?---I'm not sure.
MS BOWE: Deputy President, if I might. I'm not sure that we are aware of a second form.
MR SHAWL: Sorry, we are not aware of that either.
THE DEPUTY PRESIDENT: Good Lord.
MR SHAWL: Because we only put in one application. 15
[21] In those circumstances, we consider that the Deputy President was correct to rely upon Ms Shawl’s oral evidence and prior oral statements, given from memory, and to reject what was contained in the witness statements and the unfair dismissal remedy application as reflective of the evidence Ms Shawl wished to give before the Commission.
[22] The submissions concerning Ms Shawl’s credibility which ACS contends the Deputy President failed to deal with were set out in paragraphs 6-8 of its written closing submissions. We do not reproduce those submissions, but they consist of nine identified instances where there were inconsistencies between either the application or the witness statement and Ms Shawl’s oral evidence. For example, the second instance (in paragraph 6(b) of the written submission) was as follows:
“In paragraph 10 of the Applicant’s Statement, the Applicant claims to have been employed by the Respondent as a Registered Nurse. In cross examination, the Applicant admitted that she was neither qualified to work as a Registered Nurse in Australia, nor had she ever held that position with the Respondent.”
[23] Ms Shawl’s evidence, upon which the “admission” referred to was based, was as follows:
In your witness statement, in paragraph 10 of your statement, if you could have a look at that paragraph for me?---The tenth paragraph?
On the front page of the witness statement, this document here?---Yes.
On the front page, paragraph 10 down the bottom?---Oh, this one. No, I didn't write that one.
So you didn't write that paragraph?---No.
Who wrote that paragraph?---I don't know. I was not registered nurse in a retirement village, no.
But you have signed this statement to say that it is correct; is that right?---I mentioned that I was a registered nurse in India but not in the Castle Hill retirement village.
So what is written in paragraph 10 of your statement is wrong?---I don't know how it comes there wrong, but I was not a registered nurse in the retirement village, I was in India. That's what I mentioned, I don't know - - -
Okay. So that reference there that says:
My former position held at Anglican Retirement Villages (Diocese of Sydney) was a registered nurse.
That is wrong?---Yes, I said them I was a registered - they see my resume and all that and my certificate, but I was not joined as a registered nurse, no.
So somebody else has written this in your statement; is that correct?---Yes, I don't know - my son wrote it - I don't know how it comes in this one, mention it there. 16
[24] The above passage from the transcript makes it clear that this was simply another manifestation of the same difficulty concerning Ms Shawl’s witness statement. Likewise the other aspects of ACS’s submissions are simply further manifestations of that difficulty, or the related difficulty concerning the contents of the application. That difficulty, as earlier stated, had been dealt with directly by the Deputy President in the Decision. Having dealt with the central aspect of the attack on Ms Shawl’s credibility, it was not necessary for the Deputy President to then deal with every other aspect of ACS’s submissions to the same effect. 17
[25] In relation to ACS’s seventh contention, it is correct that the Deputy President did not deal with the submission it advanced at the hearing that Ms Shawl had lied during the investigation/disciplinary process and that this was, independently, a valid reason for dismissal. However that submission had as its premise that Ms Shawl admitted in the evidence she gave before the Deputy President that she lied to ACS during its investigation and disciplinary process “when she asserted Ms Jimenez was motivated to make false allegations as a consequence of having been disciplined and/or criticised by [ACS] earlier in the day of the incident”. 18 We do not consider that the evidence supports that premise. Mr Heath’s evidence, for example, was that Ms Shawl said during the investigation that Ms Jimenez was:
“... accusing me because Florence and I told her a few times that she should be doing things differently. She wanted to rush her work and take breaks, and we told her how we did things here. I’ve never worked with her before that shift.” 19
[26] Ms Shawl, far from admitting that this was an untrue statement, essentially confirmed it in her evidence. She identified a number of occasions when she had spoken to Ms Jimenez the day of the incident about particular work issues and methods:
In your witness statement you say "I had spoken to the witness about her unsatisfactory performance and/or unorthodox methods earlier in the day", do you know what that is talking about at all?---No, nothing, only I just remember that thing happened because she didn't know and I said "He's looking room, he doesn't know - they forget" then I say "Your room is that way, you're looking for room, you all right?" and he said "Okay" then I went and I saw him room then she say "They know, you tell me what you want to do". I say "No, they don't know, they forget, they don't remember". 20
...
You had not worked with her prior to this day?---No, she was on dementia floor coming as a tea girl 10 to 2.30, but I never worked with her. She was on the floor but I never worked with her. That was my first time to working with her. I never worked with her on the floor. She was on the floor but I never worked with her.
But you had not worked with her?---No.
So you had not worked with her before?---No.
You had not given her any warnings about unsatisfactory performance?---No, no, just like that day what happened.
To point her in the direction of the room. That was all, just to tell her where the resident's room was?---That day when she came, because she was a job mate, I was a permanent, I know how to work it out. She asked me a few questions, "Oh, we put this one there like that?" and I say, "No, we don't do early, it's too early." Maybe she didn't like or what, I'm not sure. Then we carry on. Like something happen in the floor and I ask her like that to do it, as a work team what we had to do together as a team. Otherwise I never worked before with her.
So you didn't give her any warnings, you didn't tell her that she had done something wrong in the sense that she wasn't in trouble with you, was she?---No, no.
You had just given her some advice?---Only one time she asked me - one of the residents, he was trying to get out of bed, I know he like to go that time toilet and I was busy and I say, "Please can you bring the chair, he wants to go toilet." She say, "No, he's confused." I say, "No, no, he is not confused, he will open the bowel." Then she - I finished with that resident and I came to her, then she was waiting because that resident tried to get up and she was waiting and he opened the bowels. Then I - just I said, "See he open - I told you he likes to go toilet."
Okay?---Maybe she didn't like that opinion of mine, but that resident - - -
But she wasn't in trouble, was she?---No, no, she was not in trouble, just as a team we have to work together.
A conversation?---Yes, I have to tell her because I know the resident very well. 21
[27] It may be noted in the above passages from the transcript that it was put to Ms Shawl more than once that she had not previously “warned” Ms Jimenez about her work performance, and that Ms Shawl confirmed she had not. However, Ms Shawl did not say during the investigation/disciplinary process that she had previously given a warning to Ms Jimenez about her work. The substance of the above evidence is consistent with what Mr Heath said Ms Shawl told him. There was never any admission of lying. At best for ACS, Ms Shawl effectively accepted that the reference in her witness statement to her having had “spoken to [Ms Jimenez] about her unsatisfactory performance and/or unorthodox methods” overstated the position, but that again raised the same problem that the witness statement prepared on her behalf did not properly reflect the evidence which she wished to give to the Commission.
[28] Therefore although ACS is correct to contend that its submission was not dealt with in the Decision, we consider that the submission was without merit and could not therefore have affected the outcome of the matter.
[29] ACS has therefore not demonstrated any arguable case of appealable error of a nature that would attract the public interest. Nor do we consider that it has identified any other basis for the grant of permission to appeal. The Decision is not, as contended by ACS, disharmonious with the other first instance decisions referred to, because in each of those decisions, which involved aged care workplaces, the Commission was satisfied that the misconduct alleged against the employee had in fact occurred. There is no disharmony merely because in the Decision here the Deputy President, on the evidence before her, was not satisfied that the alleged misconduct occurred. For the same reason, the issue of importance and general application asserted by ACS in support of its application for permission to appeal does not properly arise. In any unfair dismissal case (with the exception of cases involving a dismissal for serious misconduct by a small business employer) it is necessary for the employer to satisfy the Commission that the misconduct actually occurred. That, in a particular case, the Commission was not satisfied about this does not represent any approach which would have the negative effects upon employment practices in the aged care sector asserted by ACS.
[30] For the reasons given, we are not satisfied that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
J. Darams of counsel for Anglican Community Services.
R. Shawl representative for D. Shawl.
Hearing details:
2016.
Melbourne:
12 October.
3 Decision at [17]
4 Decision at [20], [22], [23] respectively
5 Decision at [21]
6 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
7 (2011) 192 FCR 78 at [43]
8 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
9 [2010] FWAFB 5343 at [27], 197 IR 266
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
12 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 537; Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [57]-[58]
13 Transcript PNs 70-76
14 Transcript 20 July 2016 PNs 243-255
15 Transcript 20 July 2016 PNs 180-197
16 Transcript 20 July 2016 PNs 270-280
17 See Soliman v University of Technology, Sydney [2012] FCAFC 146 at [41]-[57]
18 ACS’s written closing submissions, paragraph 28
19 Statement of Simon Heath, paragraph 5
20 Transcript 20 July 2016 PN 179
21 Transcript 20 July 2016 PNs 476-485
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