[2017] FWC 73


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Michael Albert
Alice Springs Town Council



Application for relief from unfair dismissal.

[1] Michael Albert was employed by the Alice Springs Town Council from 16 September 2013 until his dismissal, which took effect on 27 July 2016. He was initially employed in Litter Collection duties but then became a Concrete Finisher. Following a short investigation in July 2016, Mr Albert was dismissed by the Town Council for reasons that included him having tested positive for drugs in his system and for having contravened an obligation not to be under the influence of non-prescription drugs or substances.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Albert’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.


[3] As a Concrete Finisher, Mr Albert’s work with the Alice Springs Town Council required him to travel with another employee in a Council truck to perform their work. On Wednesday, 20 July 2016 he started work at 7 AM and was scheduled to work with his brother-in-law, Owen Meurs. The two men loaded the truck and left the depot, with Mr Albert driving. Shortly after leaving the depot, at about 7:15 AM, the Council truck was involved in collision with another vehicle. The evidence before the Commission indicates that the Council vehicle, being a “rigid truck under 4.5 G.V.M.”, was impacted by a sedan that disobeyed a give way/stop sign. The Northern Territory Police Crash Report that was attached to Mr Albert’s witness statement records the following about the circumstances of the collision;

[4] The same report records that Mr Albert was not subjected by the police to a roadside saliva drug test but that he was tested for the presence of alcohol with the finding that he “tested negative”. No blood sample was taken by the police according to the report.

[5] A two-way radio call was made by Mr Albert to the Council depot and he reported the fact that he and Mr Meurs had been involved in a motor vehicle accident. In response to that notification Justin Rutherford, the Supervisor of Municipal Services with the Town Council, attended the accident scene and found that both the police and an ambulance were in attendance as well.

[6] All parties agree that Mr Rutherford then took Mr Albert to a pathology service named Western Pathology for drug testing, before taking Mr Albert back to the Town Council’s premises. Mr Rutherford had been directed to take Mr Albert for drug testing by Scott Allen, the Town Council’s Manager Works. The drug test that was administered to Mr Albert was in the form of a urine sample drug and alcohol test, which returned a positive result. Mr Albert was notified by Mr Allen of that fact on the same day as providing the sample, with Mr Allen providing the following evidence through his witness statement, noting that THC is a cannabis constituent;

[7] The evidence of both Mr Albert and Mr Rutherford is that at the same time as Mr Allen informed Mr Albert about the positive test he was also told that he was unable to resume his normal duties because of the duty of care owed by the Town Council to him and other staff members. Mr Rutherford and Mr Allen gave evidence that in the same conversation, on Wednesday, 20 July 2016 that Mr Albert was informed that the urine sample would be sent for further analysis.

[8] Mr Albert and Mr Rutherford also agree that Mr Allen told Mr Albert words to the effect that the initial positive result did not mean that he would automatically lose his job, although the Respondent’s witnesses both connect that statement with the qualifier that a decision about his employment future could only be made after the result of the confirmation test. 3

[9] Later on 20 July 2016, and after Mr Albert had gone home, Mr Allen telephoned him and asked him to come in for a discussion the next day in order “to explain the reasons as to why THC was present in his system”. 4 That discussion was arranged for Thursday, 21 July 2016 at 2 PM.

[10] Mr Allen’s evidence includes that reference to the need for there to be a confirmation test was also mentioned in the meeting with Mr Albert on Thursday, 21 July 2016, a meeting which included Tony Jennison as well, the Town Council’s Manager Human Resources.

[11] Mr Jennison gave evidence that in the meeting held on 21 July 2016 Mr Albert gave an explanation for the presence of THC in his system and was told that a confirmatory drugs tests would need to be conducted;

[12] Mr Albert disputes in his oral evidence that he was ever told that his urine sample would be sent for a second or confirmatory test following the initial non-negative result.

[13] The meeting referred to took place with Mr Albert attending as well as Mr Allen and Mr Jennison. The first part of the conversation included Mr Jennison asking whether Mr Albert had a support person. After a short period Mr Allen obtained the assistance of Patrick Ortega, a United Voice delegate working in the Council. Mr Albert’s witness statement about the discussion includes the following;

[14] The witness statements of both Mr Jennison and Mr Allen record that in the course of the meeting on Thursday, 21 July 2016 Mr Albert asked them if Council had a drugs rehabilitation program that he could attend. 7 While Mr Albert does not dispute that he asked that question at some point, he disputes that it was asked in the meeting on 21 July, and instead puts forward that the question was asked in a later meeting on Tuesday, 26 July 2016, and that it came in the context of him being informed he was to be dismissed, with him then putting forward that it was his understanding that rehabilitation programs were always available to employees if required.

[15] In any event, Mr Albert’s urine sample was sent for further testing by Western Pathology which provided its findings to the Alice Springs Town Council in a report dated 22 July 2016. That report concluded the presence of cannabis metabolite within the sample tested, to the level of 1100 �g/L against a “cut off” of 15 �g/L.

[16] The Town Council received Western Pathology’s report when Mr Jennison accessed the pathology company’s reporting website. Mr Jennison’s evidence on the subject is limited to the fact that he accessed the relevant website, established that the test had indicated 1100 �g/L for cannabis and that he then spoke to the Council’s CEO, Rex Mooney, on the subject. 8 The results of the further analysis were communicated to Mr Allen, whose evidence on the subject records that he was informed by Mr Jennison of the following matters;

[17] Mr Albert’s evidence about the circumstances of the meeting on Tuesday, 26 July 2016 includes the following;

[18] Mr Jennison’s evidence includes that at the meeting on 26 July 2016 Mr Albert was informed he was to be dismissed and that “Michael was subsequently presented with a Termination of Employment letter, Michael asked if Council would reconsider its decision to terminate, but we informed him that Council's decision was final.” 11 Mr Allen’s evidence on the subject is consistent with Mr Jennison’s putting forward that Mr Albert had also asked about “the appeals process” and that Mr Jennison informed him he would get back to Mr Albert and Mr Ortega.12

[19] The letter of termination provided to Mr Albert is dated 26 July 2016 and is signed by the Town Council’s Chief Executive Officer, Rex Mooney, and communicates to Mr Albert these reasons for his dismissal;

[20] Mr Albert also gave evidence that when he undertook the urine test he was never provided with paperwork by Western Pathology and that when he asked for a copy of his results after being terminated they refused to provide him with a copy. Mr Albert says that the first time he saw the results was when the Employer Response Form in these proceedings was filed on 25 August 2016.

[21] Mr Albert does not dispute that the test result provided to the Town Council by Western Pathology relates to the sample given by him or that the result was wrong.


[22] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

387 Criteria for considering harshness etc.


[23] Determination of whether Mr Albert’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[24] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 14

[25] I will deal with each of the criteria within s.387 in turn.

(a) 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)

[26] Having been dismissed for misconduct, the Commission is first required to find whether, on the balance of probabilities, the alleged misconduct actually occurred. 20 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.21 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.22

[27] In some respects, the factual base of this matter is not especially controversial, with the following findings being available on the evidence of the parties about Mr Albert’s conduct;

[28] Mr Albert acknowledges having attended an information session on the Town Council’s alcohol and drugs procedural statement and directives in 2015 but disputes whether in the course of that session he was told that a breach could lead to termination.

[29] Mr Rutherford’s evidence is that, after the motor vehicle accident, he was directed by Mr Allen to send Mr Albert for urine sample drug and alcohol testing. The evidence of both is that such is consistent with the Town Council’s application of its PSD, being a formal Procedural Statement and Directives on Alcohol and Drugs that was adopted by the Council in late 2015. In particular the Respondent’s witnesses put forward that testing after a motor vehicle accident would be a routine to be followed by the Town Council. Rather than specifying that an employee involved in a motor vehicle accident is to be directed to be tested for alcohol or drug use, the PSD specifies that an employee will be immediately directed for testing “where Council has reasonable suspicion that an employee’s work performance is affected by drug use”. 23 In this regard, the Town Council argues that it would in fact have a “reasonable suspicion” when an employee has been involved in something such as a motor vehicle accident. The evidence of each of the Town Council’s witnesses is that they understood the policy to require drug and alcohol testing in cases where an employee was involved in a reportable accident (that is one which is required to be reported to the police) or where the incident involves more than $1000 in damage to property.

[30] The Town Council’s evidence includes that the vehicle Mr Albert was driving cost $16,994 to repair. 24

[31] The police did not require Mr Albert to submit to drug testing, but did require a breath analysis from him for the purposes of alcohol testing.

[32] There is no evidence before the Commission that would lead to a finding that Mr Albert had not discharged his obligation to be truthful and honest during the course of the Town Council’s investigation about his conduct.

[33] While there appears to be nothing about the motor vehicle accident, as it was reported to the Town Council, that would cause it to have a reasonable suspicion that Mr Albert’s work performance or driving abilities had been affected by drug use, I accept that the Town Council was acting according to how it understood its policy to operate when it directed Mr Albert to attend for drug testing.

[34] Mr Albert puts forward both that he was not provided with documentation by Western Pathology when he provided a urine sample for them and neither was he provided with the results of the test that were ultimately relied upon by the Town Council to dismiss him. He also submits that he was not informed that the sample would be sent for further analysis after its initial negative result. After considering the evidence of both Mr Jennison and Mr Allen on the subject and comparing it with the evidence given by Mr Albert, I am satisfied that Mr Albert was informed there would be further analysis.

[35] It is notable that Mr Albert’s witness statement does not refer to him not being told about the need for confirmatory testing, despite him realising by the time of preparing the statement that such testing had been carried out. Mr Allen’s evidence refers to Mr Albert having been told on two occasions there would be further testing and, importantly, in a separate phone conversation on Friday, 22 July 2016 to him apologising for the confirmatory test results having not yet been received and, at the time of the conversation, seeming like Mr Albert would need to wait the weekend for the process to be concluded. 25 That evidence of Mr Allen’s was not challenged by the Applicant. In all, I consider it to be implausible that Mr Albert did not know that his urine sample would be sent for further confirmatory testing.

[36] The Town Council makes much of the fact that the second analysis of the urine sample returned the result it did, submitting;

[37] The interpretation the Town Council puts on the second analysis is that Mr Albert’s cannabis metabolite reading was very high, and unacceptably so. The explanation which Mr Albert gave to Mr Jennison and Mr Allen was that he had last used cannabis on the night of Sunday, 17 July 2016 and that he thought it would be out of his system within about six hours. 27

[38] The Town Council argues that it has a drug and alcohol policy that demands a zero count for a drug analysis test. 28 That argument relies upon the contents of the Town Council’s Procedural Statement and Directives: Alcohol and Drugs (PSD) which provides for the following within a definitions clause;

[39] The same policy makes the following provision in relation to the consequences of working with alcohol or drugs within one’s system;

[40] While Mr Albert’s evidence includes that he attended an information session about the introduction of the PSD in 2015, he disputes that it amounted to him being told that a breach of the PSD could lead to termination. 31 For its part, the Town Council is dismissive of this argument, putting forward that “Mr Albert knew full well that the policy existed and wilfully chose not to abide by it”.32 Mr Rutherford’s evidence on the subject of the information session, which was characterised by the Town Council as training, was that there was a robust discussion in the room about the PSD and that everyone was involved.

[41] The Town Council’s argument, succinctly put, is that an employee who is drug tested and returns an analysis showing “the presence of a prohibited drug” within their system faces suspension from duty and further disciplinary action, which may include dismissal.

[42] As found above, at the time of the motor vehicle accident, Mr Albert had cannabis metabolites within his system, with his explanation to the Town Council’s investigation being that the non-negative reading came about because of him having used cannabis on the Sunday night, more than two full days prior to the motor vehicle accident, which occurred on Wednesday, 20 July 2016, and that he thought the cannabis would be out of his system within 6 hours. 33 He gave that explanation to Mr Allen and Mr Jennison in the meeting held on Thursday, 21 July 2016. At that time the only information known to the Town Council about his drug use was that the initial testing had returned a non-negative result, and that a confirmatory test was being undertaken.

[43] After receiving that explanation, Mr Jennison accessed the confirmation test results on Friday, 22 July 2016 and discussed them with his Chief Executive Officer, Mr Mooney. Between them they decided to dismiss Mr Albert, and Mr Jennison informed Mr Albert of that decision in the meeting held on Tuesday, 26 July 2016. Mr Allen’s evidence is that Mr Jennison informed him of the decision to dismiss Mr Albert the day before, on Monday, 25 July 2016. 34

[44] As set out above, the Full Bench has succinctly summarised the grounds for establishing when an employer has a valid reason for dismissal. In this case, the enquiry requires a focus on whether the conduct complained of by the Town Council occurred and justified termination, with the source of that proposition stemming from the judgment of the Full Federal Court in Edwards v Giudice, which matter concerned the application of earlier legislation dealing with unfair dismissal; 35

[45] The conduct of Mr Albert relied upon by the Town Council, as set out in its letter of termination, is that at the time of the motor vehicle accident he was under the influence of a non-prescriptive drug or substance.

[46] The evidence available to the Town Council when it took its decision to dismiss establishes that allegation. When tested for the presence of drugs in his system immediately after the motor vehicle accident on 20 July 2016, Mr Albert’s urine analysis test established that his system contained cannabis metabolites at the level of 1100 �g/L. At the time it decided to dismiss Mr Albert, the Town Council had before it the following information;

[47] Mr Jennison’s evidence includes that he made some basic interpretive enquiries about the result and satisfied himself that the result was unacceptably high. While he was imprecise in his evidence about how or of whom he made those enquiries, his evidence is capable of acceptance. Those enquiries reasonably led him to form the view that the result was an unacceptably high one.

[48] The question of the quantum of the result goes directly to the question of whether Mr Albert’s conduct of being at work while under the influence of a non-prescriptive drug or substance justifies termination. In this regard, the Town Council submit that Mr Albert’s confirmatory testing shows a result “73 times higher than the cutoff point” and would have me draw the conclusion that this was an unacceptably high reading.

[49] The material before me about the interpretation of the results is from three sources. Firstly, Mr Jennison gave evidence that he had satisfied himself that the result was to be interpreted as a high reading. Secondly, the Town Council submitted that the result deviated substantially from the Town Council’s policy “that demands a zero count for a drug analysis test”. 36 Thirdly, Mr Albert submitted that “not all test results are equal”, as well as putting forward that urinary drug tests indicate the presence of drugs and not impairment; are subject to variable results; and are affected by externalities such as a person’s hydration, drug use, body mass index, kidney function, etc.37

[50] While it is well settled that a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced, consideration of the question requires a consideration of the context of the workplace, with the following being held in relation to predecessor legislation;

[51] The context of the workplace includes one in which employees, such as Mr Albert, are required to operate large items of plant and equipment. The Town Council is also a regional employer which desires to be an exemplar to its community, which itself suffers from the ill-effects of drug and alcohol abuse on a daily basis. It submitted that the Commission should have regard to the following matters of context about the operational requirements of its business;

[52] These matters of context for its operational requirements lead me to find that the Alice Springs Town Council held a valid reason for Mr Albert’s dismissal relating to his conduct.

[53] A chance, and apparently blameless, motor vehicle accident exposed conduct by Mr Albert that needed to be dealt with by the Town Council. Its assessment that Mr Albert’s conduct was unacceptable was made after Mr Jennison made enquiries about the interpretation of the result. The fact that the reading was as high as it was led to its decision to dismiss, rather than to choose an alternative course of action.

[54] In forming this view, I have taken into account that the motor vehicle accident was attended by both the police and an ambulance crew and that while Mr Albert was tested at the accident scene for alcohol, neither had cause to require him to be tested for the presence of drugs. The likelihood that Mr Albert did not appear impaired to the police and ambulance crew does not change my finding that the Town Council held a valid reason for his dismissal.

(b) whether the person was notified of that reason

[55] The evidence shows that Mr Albert was notified of the Town Council’s reasons for dismissal, with him being provided with a letter dated 26 July 2016, which recorded that at the time of the motor vehicle accident on 20 July 2016 he was under the influence of a non-prescriptive drug or substance.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[56] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal. 40 In Wadey v YMCA Canberra41 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer;

[57] I am not persuaded that Mr Albert was provided with an opportunity to respond to the Town Council’s reasons for his dismissal. After considering the evidence before the Commission, both of Mr Albert and the Town Council’s managers, the finding may be made that Mr Albert was not provided with a copy of the testing of his urine sample and was instead verbally informed of the first analysis and then shown but not given a copy of the pathology report, and then only at the termination meeting. 43 Instead of being given a copy of the reports he was informed that the first analysis was positive to drugs and that the further analysis was high without him understanding what it meant.44 Further, it was not put to Mr Albert that the result of the further testing was unacceptably high and he was not asked for an explanation. Mr Albert was also not informed that the Town Council proposed to dismiss him nor asked for a response.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[58] There is no evidence that Mr Albert was refused the opportunity to have a support person to assist at discussions about the dismissal and, in fact, a United Voice delegate attended with him and spoke on his behalf.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[59] The dismissal does not relate to Mr Albert’s unsatisfactory work performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[60] There is no evidence that the size of the Town Council’s enterprise impacted upon its decision to terminate Mr Albert’s employment, and the way in which it was implemented.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[61] There is no evidence that the Town Council lacked dedicated human resource management specialists or expertise or that such impacted on its decision making.

(h) any other matters that the FWC considers relevant

[62] Mr Albert puts forward as a potential “other relevant matter” the fact that he was approached, after dismissal, for possible re-employment by the Town Council. The circumstances include that on 31 August 2016, Mr Albert’s union representative, Dianne Yali, from United Voice, was contacted by the Town Council, and the following exchange ensued;

[63] Mr Albert then applied for the role on 5 September 2016; was interviewed on 19 September; and was advised he was unsuccessful on 21 September. 46

[64] I do not find that this, or any other matters, are relevant to whether Mr Albert was unfairly dismissed and require being taken into account.

[65] While having found that the Alice Springs Town Council held a valid reason for Mr Albert’s dismissal relating to his conduct, I have also found that he was not accorded with the opportunity to respond to that reason. As a result, the Council made its decision to dismiss Mr Albert without the benefit of an explanation or consideration of any mitigating factors he may have brought forward.

[66] It is not axiomatic that a failure to accord an employee with procedural fairness in the form of an opportunity to respond to an employer’s reason for dismissal will lead to a finding that an employee has been unfairly dismissed.

[67] In Hafer v Ensign Australia, Commissioner Platt found that a failure to give an employee, dismissed for drug use, an opportunity to respond to the reasons for termination would not have had any bearing on the outcome of the disciplinary process. 47 In that case, an employee working on a drilling rig had failed an initial screening test and one of two urine analysis tests that were taken, revealing the presence of methamphetamine, THC and amphetamine. The employee denied having taken drugs and contended that the positive test should not be relied upon. The Commissioner concluded that, given Mr Hafer’s denial of drug use in the hearing, he had no satisfactory explanation for the results of the positive test and that the presence of procedural defects in a termination meeting did not affect the outcome of the termination.48

[68] The Commission has also held, in relation to matters of misconduct generally, that in circumstances in which procedural faults are established that two questions arise for consideration; did the seriousness of the misconduct outweigh any procedural faults and would the procedural faults have affected or altered the ultimate outcome of the dismissal? per Dissanayake v Busways Blacktown Pty Ltd (Dissanayake)49 The Full Bench confirmed that proposition on appeal, finding that the decision made at first instance by Deputy President Sams in respect of the procedural fairness afforded to the applicant and how his dismissal was affected by the same were open to him.50

[69] In the decision of Dissanayake at first instance, Deputy President Sams contextualised the consideration of procedural fairness by an examination of earlier authority of the High Court and the Australian Industrial Relations Commission. 51 In Byrne & Frew v Australian Airlines Ltd, the High Court considered the import of unfair procedures, finding;

[70] In Farquharson v Qantas Airways Ltd the Full Bench held that in circumstances in which a dismissal for misconduct has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the dismissal to justify a conclusion that the dismissal was nevertheless harsh, unjust or unreasonable;

[71] In Mr Albert’s case, he openly conceded the use of cannabis, and the only explanation he has given about his use of the drug at any time, including during the hearing, was the one he gave to the Town Council on Thursday, 21 July 2016 – that he had consumed it on the Sunday night prior to the motor vehicle accident on Wednesday, 20 July 2016. He has not deviated from that explanation, even after knowing the pathology result on which the Town Council relied and its view that the result was unacceptably high. As a result, the finding is open to be made that even had the Town Council formally put the result to Mr Albert, along with its belief that it was an unacceptably high reading, and that such should lead to his dismissal, that no explanation that Mr Albert could put would alter the ultimate outcome of the matter.

[72] At the time of the motor vehicle accident Mr Albert was obviously driving a significant sized truck on a public road. That he was not at fault in the accident is not relevant; instead what is relevant is that he was driving while under the influence of a drug. After taking into account all of the material before the Commission, I am satisfied that the Town Council was entitled to consider the circumstances as an extremely serious breach of its requirements.

[73] In Mr Albert’s case, I find that the seriousness of his actions outweigh the procedural faults of the Town Council in its decision to dismiss him, and I find that had the procedural faults been remedied, they would have been unlikely to affect or alter the ultimate outcome of the matter.

[74] As a result, I find that Mr Albert was not unfairly dismissed, and his application is in turn dismissed.



Ms D Yali, United Voice, for the Applicant.

Mr A Riley for the Respondent.

Hearing details:


Melbourne (by telephone):

12 December.

 1   Exhibit A3, Statement of Michael Albert, Attachment A.

 2   Exhibit R2, Statement of Scott Allen, [3]-[5].

 3   See Exhibit R2 [5] and Exhibit R1, Statement of Justin Rutherford, [9].

 4   Exhibit R2 [8]; Exhibit A3 [12].

 5   Exhibit R3, Statement of Tony Jennison, [5]-[6].

 6   Exhibit A3 [17]-[20]

 7   Exhibit R2 [12]; Exhibit R3 [5].

 8   Exhibit R3 [7]–[8].

 9   Exhibit R2 [16]-[19].

 10   Exhibit A3 [21]-[23].

 11   Exhibit R3 [9].

 12   Exhibit R2 [21].

 13   Exhibit A3 Attachment B.

 14   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 15   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 16   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 17   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 18   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 19   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 20   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 21   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 22   Streeter v Telstra Corp Ltd (2008) 170 IR 1

 23   Exhibit R4, Respondent's Outline of Submissions, Attachment I.

 24   Ibid Attachment D.

 25   Exhibit R2 [16].

 26   Exhibit R4 [23]-[24].

 27   Exhibit R3 [5]; Exhibit R2 [12].

 28   Exhibit R4 [24].

 29   Ibid Attachment I.

 30   Ibid.

 31   Exhibit A3 [30].

 32   Exhibit R4 [26].

 33   Exhibit R2 [12].

 34   Ibid [18].

 35   [1999] FCA 1836; (1999) 94 FCR 561 [4]-[7], per Moore J.

 36   Exhibit R4 [24].

 37   Exhibit A1, Applicant’s Outline of Submissions, [50].

 38   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, p.373.

 39   Exhibit R4 [31]-[34].

 40   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 41   [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].

 42   Ibid.

 43   Exhibit A3 [22].

 44   Ibid.

 45   Exhibit A2, Statement of Dianne Yali, [4]-[6].

 46   Exhibit A3 [33]–[34].

 47   [2016] FWC 990 [62].

 48   Ibid [71].

 49   [2011] FWA 3549 [98].

 50   Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 [16].

 51   [2011] FWA 3549 [96]–[98].

 52   (1995) 185 CLR 410, (1995) 61 IR 32, pp.72 – 73, per McHugh and Gummow JJ.

 53   (2006) 155 IR 22 [40]–[41].

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