[2018] FWC 1475
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Stephanie Ward
v
TRG Administration Pty Ltd T/A The River Group
(U2017/9164)

DEPUTY PRESIDENT ASBURY

BRISBANE, 2 MAY 2018

Application for an unfair dismissal remedy – Jurisdictional objection – Whether Respondent is a small business as defined in s. 23 – Whether Respondent has more than 15 employees by virtue of being an associated entity as defined in s. 12 of the Act with reference to s. 50AAA f the Corporations Act 2001 – Whether Applicant has served the minimum employment period – Whether the Applicant is guilty of serious misconduct described as deceit, fraud and theft – Finding that Respondent is not a small business on the basis that it is an associated entity – Finding that Applicant has served the minimum employment period – Finding that Applicant is not guilty of serious misconduct – Finding that dismissal is unfair – Remedy – Compensation awarded.

[1] Ms Stephanie Ward applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by TRG Administration Pty Ltd (TRG Admin). Ms Ward states that she was employed by TRG Admin as a Manager, from approximately June 2011 until her dismissal on 9 August 2017. TRG Admin is a business which provides administrative support to The River Group of Companies. TRG Admin was represented by Mr Russell Hill, who stated that he is the Director of a number of companies within The River Group.

[2] The reason given for the dismissal of Ms Ward as set out in a termination letter appended to her Form F2 application was serious misconduct based on failure to carry out a lawful and reasonable direction. The Form F3 response filed by TRG Admin was not of assistance in identifying the reason for dismissal and simply stated: “FWC has a copy of the termination letter, verification of other matters are being collated and will be provided when available.” In response to a question in the Form F3 requesting TRG Admin’s response to the contentions set out by Ms Ward in her Form F2 application, the following is stated: “No comment at this stage, the matter is currently under further investigation.” The Form F3 response also indicated that Ms Ward commenced employment in June 2011 and The River Group had less than 40 employees and TRG Admin less than 15 employees.

[3] After an unsuccessful conciliation and an initial Directions/Conference, TRG Admin raised jurisdictional objections to the application that were inconsistent with the material set out in the Form F3 response filed on 27 August 2017. To enable the matter to proceed expeditiously, TRG Admin was directed to file a further Form F3 response to clarify the jurisdictional objections and the reasons for dismissal. In an amended Form F3 response filed on 9 October 2017 (but dated 27 August 2017), TRG asserted that it is a small business and that Ms Ward had not served the minimum employment period required in s. 383(a) of the Act, so that she is not a person protected from unfair dismissal. In the alternative, TRG contended that the dismissal was not unfair on the basis that it was consistent with the small business fair dismissal code (the Code) or that the dismissal was not harsh, unjust and unreasonable.

[4] The reasons given in the amended Form F3 for Ms Ward’s dismissal by TRG Admin were “DECIET” (sic) associated with “doctoring the books”. It was also asserted that other matters had been discovered after the dismissal of Ms Ward which had been referred to the Queensland Police Service. In various communications with the Commission, TRG Admin also alleged poor performance and serious misconduct on the part of Ms Ward variously described as deceit, theft and fraudulent manipulation of profit and loss data. In one statement filed by TRG Admin, Ms Ward was branded a “lying thief”. In oral evidence to the Commission Mr Hill also raised a number of other allegations about Ms Ward involving making payments to phantom employees who did not actually work for TRG Admin. Ms Ward maintained she had made inquiries to the Queensland Police Service about the matters referred to by Mr Hill and had been advised her that there was no basis for the allegations and that no action would be taken in relation to them. Further Ms Ward denied that she had engaged in such conduct and said that any alleged failure to follow Company procedure in relation to checking quotes did not warrant dismissal. Ms Ward also said that the alleged phantom payments were income splitting arrangements made by her in which she split her income with her children who were also employed by the Company.

[5] A number of Mentions were held to deal with the change in the Respondent’s position and directions were issued requiring submissions and evidence to be filed for hearing in relation to the jurisdictional objections and merits. All relevant legislative provisions were appended to the directions. It was also reiterated to Mr Hill on a number of occasions that the seriousness of the allegations made against Ms Ward would require proof regardless of whether the application was considered in the context of the Code or the general provisions of the Act dealing with unfair dismissal. It was also made clear to the parties that if statements of witnesses were to be tendered and relied on at hearing, witnesses would be required to be available to give evidence and be cross-examined and that a request could be made for witnesses to attend by telephone or video link.

[6] Given the location of the parties, a hearing was conducted by video link from Brisbane with Ms Ward appearing in Mackay and Mr Hill appearing in Brisbane. Ms Ward gave evidence in support of her application. 1 Evidence for TRG Admin was given by Mr Hill.2 Neither party sought to call witnesses.

[7] It is not in dispute that Ms Ward’s annual rate of earnings is less than the high income threshold and that if TRG Admin is not a small business, Ms Ward has served the minimum employment period as required in s. 383(a) of the Act. The issues for determination are whether:

2.1 Whether TRG Admin a small business?

[8] As defined in s. 23(1) of the Act an employer is a small business employer if it employs less than 15 employees at the relevant time. As provided in s. 23(3) for the purposes of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. Associated entities are defined in s. 12 as having the meaning given by s. 50AAA of the Corporations Act 2001, which provides as follows:

“50AAA Associated entities

(1)  One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2)  This subsection is satisfied if the associate and the principal are related bodies corporate.

(3)  This subsection is satisfied if the principal controls the associate.

(4)  This subsection is satisfied if:

                     (a)  the associate controls the principal; and

                     (b)  the operations, resources or affairs of the principal are material to the associate.

(5)  This subsection is satisfied if:

                     (a)  the associate has a qualifying investment (see subsection (8)) in the principal; and

                     (b)  the associate has significant influence over the principal; and

                     (c)  the interest is material to the associate.

(6)  This subsection is satisfied if:

                     (a)  the principal has a qualifying investment (see subsection (8)) in the associate; and

                     (b)  the principal has significant influence over the associate; and

                     (c)  the interest is material to the principal.

(7)  This subsection is satisfied if:

                     (a)  an entity (the third entity) controls both the principal and the associate; and

                     (b)  the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8)  For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

                     (a)  has an asset that is an investment in the second entity; or

                     (b)  has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”


[9] The original Form F3 response was filed on 27 August 2017 and signed by Mr Hill who declares that he did so in the capacity of “FWC Delegate”. It is stated that an entity described as TRG Group has under 40 employees and that TRG Admin has under 15 employees. In response to question 2.1 in the Form F3 as to whether there are any jurisdictional objections, the “No” box has been checked and the words “at this stage” have been added. In response to question 2.3 in relation to the basis of any jurisdictional objection, the box indicating that the business is a small business and the dismissal was consistent with the code has been checked, and the word “potentially” has been added. In response to a question in relation to why the objection has been made, the following explanation is provided: “I need FWA to clarify the grouping laws in relation to this matter.”

[10] In the amended Form F3 response filed on 9 October 2017 also signed by Mr Hill in the same capacity, it is stated that TRG Admin invoices The River Group of Companies for administrative services on a weekly basis and also administers other businesses within the industry not associated with The River Group of Companies. In material filed in support of the contention that TRG Admin is a small business, it is asserted that TRG Admin is wholly owned and directed by Mr Jacob McKenzie and that it does work for The River Group of Companies and other businesses. It is stated that while the two companies are in a “master servant relationship” they are separate and have different owners and directors. An ASIC Current & Historical Company Extract for TRG Admin tendered in support of the jurisdictional objection indicates that the Company was registered on 11 January 2017 and that its sole director is Jacob Terrance McKenzie. An extract for The River Group (M) Pty Ltd also tendered by Mr Hill shows that there are two directors: Russell John Hill and Ryan Stimson.

[11] Company extracts for The River Group (M) Pty Ltd 3 and TRG Administration Pty Ltd4 both list a contact address at PO Box 391, West Burleigh 4219, and the current address for both companies is the address of an accountant located at West Burleigh. According to the evidence of Mr Hill, the River Group of Companies consists of separate companies operating in various parts of Queensland as follows:


[12] Mr Hill asserts that TRG Admin was set up to undertake administrative work for Companies in the River Group that was previously undertaken by The River Group Australia Pty Ltd. Mr McKenzie, an employee of Smashtech Pty Ltd, assumed responsibility for that Company as owner and Director. Mr Hill said that this followed discussions with Mr McKenzie about a staged process for Mr McKenzie to take over the ownership of the River Group of Companies. The establishment of TRG Admin was said to be a first step in this process.

[13] Mr Hill also provided a tax invoice 5 issued by TRG Admin to The River Group (M) Pty Ltd for ‘Administration Wages’. The email address for the issuer of the invoice is ‘donna@therivergroup.com.au’, which follows the same protocol as all other email addresses within the group, namely using the ‘@therivergroup.com.au’ domain. Further, in both the Hearing and in his written material, Mr Hill described holding meetings with Ms Ward about her management of TRG Admin. Specifically, Mr Hill said: “there have been frequent meetings between her [Ms Ward], myself and our COO Donna Robson (and others) regarding her position and the need to conform to company policies and the underlying need to create a successful business.” Mr Hill also provided a tax invoice6 from TRG Admin to The River Group (M) Pty Ltd, for “Administration Wages”. Mr Hill also stated that he decided that Ms Ward should be dismissed and informed Mr McKenzie of his decision. Mr Hill did not call Mr McKenzie to give evidence.

[14] Ms Ward’s evidence is that The River Group Australia owns the assets of the Group but does not trade. It charges administration fees to the trading entities for use of The River Group name, administration services and asset hire. Ms Ward also said that TRG Admin invoices the entities in The River Group of companies for the wages for administrative staff that would have been paid if they were processed at site level. Ms Ward also tendered a text message sent to Mr McKenzie on 10 August 2017 advising that she had not received confirmation that her termination payments had been made. The text message goes on to advise that Ms Ward will be taking the matter further, and that as director of the Company Mr McKenzie will be held responsible, and attaches an email sent to Mr Hill in relation to the same subject. Ms Ward also tendered an email from Mr Hill in response dated 14 August 2017 stating: “FYI Jacob was removed as the company Director several weeks ago.”

[15] Ms Ward also pointed to numerous emails and text messages which were tended by Ms Ward and Mr Hill evidencing that he had an active role in the operations of TRG Admin. Ms Ward said that Mr Hill had effective control of TRG Administration evidenced by the fact that his wife Mrs Marcia Hill travelled to Mackay for the purpose of dismissing Ms Ward and that Mr Hill had responded to her application and was representing TRG Admin. Further, Ms Ward pointed to the fact that the letter advising her that she was dismissed is on the letterhead of The River Group Pty Ltd and is signed by Mr and Mrs Hill. 7 It is also notable that Mr McKenzie’s name appears on the list of employees of TRG Admin tendered by Mr Hill, and was not called to give evidence about his role with the Company and the asserted role of Mr Hill as a mentor and friend rather than a controlling figure in the business.

[16] I do not accept Mr Hill’s contention that he is managing the process of Ms Ward’s unfair dismissal application on behalf of Mr McKenzie as a friend or mentor. I also do not accept the evidence of Mr Hill that The River Group and the various entities that comprise the group are merely customers of TRG Admin. A large number of emails and text messages and other documentation were tendered by Ms Ward and Mr Hill in relation to the transactions that led to her dismissal and the general operation of entities within The River Group. Mr Hill’s fingerprints are all over the documents and it is apparent that he has a management role which extends to controlling TRG Admin and its operations. It is also apparent that Mr Hill and other employees of The River Group or its various entities were managing Ms Ward and overseeing the work that she performed. The language of Mr Hill’s statements to the Commission referencing “our COO” combined with the fact that Ms Ward was answerable, in her position at TRG Admin, to the director and COO of The River Group lend weight to the conclusion that TRG Admin is an associated entity of The River Group.

[17] Further Mr Hill’s own document in the form of a tax invoice from TRG Admin to the River Group supports Ms Ward’s evidence that TRG Admin was merely an entity established for payroll purposes. The email addresses of the person who issued the invoice and the person it was directed to make it probable that the invoice is an internal document. It is also the case that all work of a substantive nature involving the management of repairs to vehicles was undertaken under the direction of managers and employees of entities within The River Group of Companies and using computer programs and systems operated by The River Group. Ms Ward organised and managed a significant amount of work for The River Group from its Mackay office.

[18] The fact that Mrs Hill was dispatched to Mackay to dismiss Ms Ward and that the letter advising of the dismissal is on a letterhead of The River Group Pty Ltd and under the signature of Mr and Mrs Hill is further evidence of the control exercised over TRG by Mr Hill. In this regard, when she effected the dismissal of Ms Ward, Mrs Hill was acting as an agent of The River Group and not of Mr McKenzie and TRG Admin. I am satisfied and find that TRG Admin is an associated entity to the other entities that constitute The River Group of Companies and as such is not a small business employer.


[19] Given my finding that TRG Admin is not a small business, I turn now to consider whether Ms Ward has served the minimum employment period of 6 months as provided in s. 383(a) of the Act so that she is a person protected from unfair dismissal. In the original From F3 response file by Mr Hill it is stated that Ms Ward commenced employment with TRG Admin in June 2011. In the amended Form F3, Mr Hill states that Ms Ward commenced employment with TRG Admin in February 2017.

[20] Ms Ward contends that she commenced employment with an entity referred to as the Hill Children’s Trust in June 2011, as accounts assistant and was promoted to the position of Chief Finance Officer. Mrs Hill is the trustee for the Hill Children’s Trust and is also a shareholder in The River Group (M) Pty Ltd. In a statement filed by Mr Hill, Mrs Hill is also referred to as an owner of The River Group. 8

[21] Ms Ward states that she moved to Mackay as the local Branch Manager of The River Group (M) Pty Ltd. According to Ms Ward, TRG Admin was created by Mr Hill in February 2017 and several members of staff of The River Group moved to the new Company. This was for the purpose of avoiding payroll tax and grouping rules. Mr Hill approached a number of staff including Ms Ward, asking them to become the director of TRG Admin. Ms Ward refused and Mr McKenzie agreed. As proof of her continuous service, Ms Ward tendered copies of pay advice forms said to date from her transfer from The Hill Children’s Trust to The River Group (M) Pty Ltd and from The River Group (M) Pty Ltd to TRG Admin, as follows:

[22] The pay advice from TRG Admin for the period 08/02/17 to 15.02/17 indicates that Ms Ward had an accrued annual leave balance at that date of 188.067 hours. A pay advice for the period from 09/08/17 to 15/08/15 indicates that Ms Ward was paid for 38 hours word and the amount of $8,224.73 for 222.289 hours of annual leave on termination of her employment. Ms Ward was not paid any amount in lieu of notice.

[23] Mr Hill said that when TRG Admin was established, eight employees from entities within The River Group of Companies went with Mr McKenzie and were employed by TRG Admin. Mr Hill said that the service of those employees was recognised and they were not informed that their service would recommence when they joined TRG Admin. Mr Hill said that it was “to honour commitments” and “a roll through”. Notwithstanding this Mr Hill maintained that Ms Ward’s employment with TRG Admin commenced in February 2017.

[24] I am satisfied that Ms Ward has served the minimum employment period of six months required by s. 383(1) of the Act so that she is a person protected from unfair dismissal. In this regard, I am satisfied that Ms Ward had continuous service from her commencement date with The Hill Children’s Trust in June 2011 to the termination of her employment by TSG Admin on 9 August 2017. Ms Ward was employed by three associated entities from June 2011 until the termination of her employment. Even if this was not the case and TRG Admin was a new employer, there was a transfer of business from The River Group (M) Pty Ltd and/or other entities in The River Group to TRG Admin, and that TRG Admin chose to recognise service with The River Group (M) Pty Ltd. I also accept Ms Ward’s evidence (which was not contradicted) that employees who took up employment with TRG Admin were not informed that previous service with entities within The River Group would not be recognised.

[25] Accordingly, Ms Ward is a person protected from unfair dismissal. Further, given that The River Group (M) Pty Ltd is not a small business employer, it is necessary to consider whether Ms Ward’s dismissal was unfair on the grounds that it was harsh, unjust or unreasonable as provided in s. 387 of the Act.

3.1 Legislation

[26] Section 387 of the Act provides that in considering whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account:

[27] The employer bears an onus of establishing that there was a valid reason for dismissal.10 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”11 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,12 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.13  While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair.

[28] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct. To constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. 14 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.

[29] Ms Ward was dismissed for reasons variously described in the material filed by TRG Admin as deceit, theft, fraud and dishonesty. In determining whether Ms Ward did engage in the conduct alleged and whether there was a valid reason for her dismissal, the standard of proof is the balance of probabilities. Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw is relevant. 15 This principle means that whilst the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct occurred and “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”16 This is not a higher standard of proof than the balance of probabilities but “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”17 While consciousness of the gravity of the allegations is required, it remains incumbent on the Commission to determine the issue by reference to the balance of probabilities. 18

[30] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable.  A dismissal may be:

3.2 The reasons for the dismissal of Ms Ward

[31] Reasons for Ms Ward’s dismissal are set out in a letter dated 9 August 2017 and headed: “Termination of your employment”. The letter relevantly states:

[32] In his evidence to the Commission Mr Hill said that Ms Ward “was sacked for deceit” as she had attempted to hide her “absolute failures” in running the business into the ground, and had refused to follow company policies on how the business could or should be run successfully. Mr Hill said that in the December Quarter of 2016 the business lost $36,000, and that there was a discussion about Ms Ward’s performance and the performance of the business. Mr Hill said that Ms Ward understood that a loss of that amount was unacceptable and told Mr Hill that the performance of that quarter was due to extraordinary circumstances around her personal life, the Christmas break and other matters.

[33] Mr Hill said at the end of the March 2017 Quarter there was a further loss of $37,000, and that at this time there were discussions with Ms Ward about her noncompliance on a range of issues and why she needed to manage the site in accordance with The River Group’s processes. Mr Hill said he warned Ms Ward that she would be dismissed if there were further losses, and that he spent a lot of time over the next three months highlighting where she needed to comply with policies, including having quotes checked, not invoicing loss making jobs, managing staff and other minor matters. 20

[34] At the end of the June 2017 Quarter, Mr Hill said that Ms Ward’s response was to “doctor the books” to show the business had made a small profit, when in fact the business had made a loss of $52,000. Mr Hill relied on a profit and loss statement of “The River Group (M) Pty Ltd” for the period of 1 July 2017 to 30 September 2017 filed with his material, to demonstrate these consecutive losses for the quarters ending on 30 December 2016, 30 March 2017 and 30 June 2017. 21 In response to a question from me about whether Ms Ward was responsible for those figures, Mr Hill said: “absolutely, it was Steph’s responsibility and lack of conformance that caused it.”22 Mr Hill said there were standard operating processes for all aspects of the business, and Ms Ward had not been following these processes, including getting quotations for work signed off before providing them to clients.

[35] Mr Hill also referred to an email responding to Ms Ward on 27 April 2017 that was annexed to Ms Ward’s statement 23, in which he had inserted notes raising issues with several quotes not being reviewed. Those comments state that there is a policy in place and ask why Ms Ward is diverting from it. Mr Hill said that the comments in that email constituted raising the issue of failure to follow policy with Ms Ward. Mr Hill also said that it was also raised with Ms Ward that failure to follow policy meant the business was completing work unprofitably, that Ms Ward was familiar with those policies and that Ms Ward had even assisted in drafting certain policies and that there had been verbal discussions of the issues at quarterly reviews.24

[36] In relation to the allegations of theft and fraud, Mr Hill relied on transactions relating to a particular insurance job for Zarb Road Transport. Mr Hill confirmed at the hearing that he was relying on documents filed in response to directions with respect to that job only. In Mr Hill said that midway through the June quarter there were some odd entries in the Company accounts which had been used to inflate the sales figures for that particular quarter. Mr Hill tendered a printout from a system called Xero indicating that an invoice was created by Ms Ward for Zarb Road Transport on 31 March 2017 for an amount of $45,027.47. That invoice was numbered 1326. Mr Hill said that Ms Ward edited this invoice on 19 April 2017, and re-entered the invoice on 15 May 2017, by adding an additional “a” to the original invoice number of 1326 so that it appeared as 1326a, with an amount of $39,114.91. Mr Hill said that the Company’s system for issuing invoices did not have the facility to put an “a” after any invoice, and that this has been a fabricated invoice number, which when entered created an illusion of an additional sale. 25 Mr Hill further said in response to questions from me;

[37] The Xero printout tendered by Mr Hill also shows an invoice number 1326 created on 3 March 2017 for an amount of $37,545.38 and that the invoice was edited by Ms Robson on 9 June so that the amount was $38,387.22. Prior to the invoice being paid there were a series of entries where it is shown that payment is received and then reversed on a number of occasions.

[38] In relation to the reversals of various payments for the Zarb Transport job, Mr Hill said that this might not have been done by Ms Ward and that he submitted the document on which those entries appeared in error as it was not relevant to the issues before the Commission. Mr Hill agreed that the entries in relation to the invoice numbered 1326 and 1326a were the only matters he was relying on to justify his assertion that Ms Ward had engaged in deceit, fraud and theft. Mr Hill also alleged that Ms Ward was making phantom payments to persons who were not employed by TRG Admin and that this was a further ground to establish serious misconduct on Ms Ward’s part that would justify dismissal. Mr Hill said that this involved pressuring the payroll clerk to make payments to Ms Ward’s son who did not work for the Company. Further Mr Hill alleged that after Ms Ward’s dismissal suppliers with overdue accounts started contacting the Branch claiming to be owed money in circumstances where there was no record of this.

[39] Ms Ward denied all of the allegations. In relation to the checking of quotes, Ms Hill said that she was aware of the policy and did get her quotes reviewed regularly by Mr Hill and other employees of The River Group. Further, Ms Ward said that if there was any failing on her part in relation to getting quotes reviewed, she was never told her position was in jeopardy over the issue.

[40] Ms Ward relied on documents annexed to her witness statement, in response to Mr Hill’s evidence that she was responsible for poor performance of the business for consecutive quarter results from December 2016, March 2017 and June 2017. Ms Ward said the documents were provided to her by Mr Hill for the purposes of benchmarking, and are documents produced using the company software called “Crashzone.” Ms Ward filed several benchmark reports for the quarters ending December 2016, March 2017 and June 2017, and said that these were prepared by and given to her by Mr Hill. Ms Ward said these reports demonstrate that there was no performance issues relied on by Mr Hill as a reason for her dismissal.

[41] In relation to the December 2016 quarter results, Ms Ward referred to a text message sent to her from Mr Hill on 29 December 2016 with the benchmarking report of the December 2016 quarter stating: “top of the charts” and containing a thumbs up symbol. Ms Ward also refers to an email from Mr Hill sent to her on 7 July 2017 with the subject of “RE: Mackay benchmarking” that stated “overall a good report and quarter.” 27 Ms Ward also said that the March quarter is typically a bad time in the vehicle repair industry. During that quarter there were 63 working days available in the Mackay Branch and Ms Ward was absent on leave for 21 of those days. During this time the site was under the control of Mr Hill and other managers of The River Group. There was also a lot of work in progress in that quarter which could not be invoiced and parts which had to be paid for and taken up in that quarter. This made the results look worse than they actually were. Ms Ward said that she had discussions with Mr Hill about this quarter and he disregarded her explanations for the performance of the Mackay Branch. Ms Ward further stated that overall the year was good and while there was no huge profit there was also no huge loss, and sales figures improved. Ms Ward also contended that the performance of the Mackay Branch was better than that of the Townsville Branch for the same period, and tendered benchmarking reports to establish this. Ms Ward said that she did not have access to profit and loss figures but pointed out that these were not tendered by Mr Hill for all of the periods that he claimed that the Mackay Branch had performed poorly.

[42] Ms Ward’s explanation for the duplicate invoices referred to by Mr Hill was set out in her written statement and elaborated on in her oral evidence. In her written statement Ms Ward said that invoice 1326 was reproduced three times in the quoting program. The first invoice was produced on 27 February 2017, directly after Ms Ward returned from leave. This invoice was produced for the purpose of “factoring” the invoice to assist with cash flow. Factoring involves assignment to a finance company of the debt that is owed by the customer or the insurance company for the repair of a particular vehicle. The finance company pays the amount to the repairer before the repairs are completed, less a fee charged by the finance company for the transaction. The amount is then repaid to the finance company by either the insurer or the customer, once the job is completed. This process assists the repairer with cash flow.

[43] A document tendered by Ms Ward establishes that on 27 February 2017, an amount of $38,723.47 relating to invoice 1326 was assigned by The River Group to Premium funding. 28 Further documentation tendered by Ms Ward evidences that the factoring request was actioned on 27 February 2017. Ms Ward said that as was her custom, the invoice was entered into the accounting system as a balance sheet item on the basis that it was reimbursable and a liability, with no effect on the profit and loss statements for the Company. Entered in this way, the invoice is not yet a sale, and the funds received into the bank are a liability as the factoring company is entitled to payment. Ms Ward said that the job was all but completed in March and all known expenses had been entered into the accounting system, and the only thing preventing her from delivering the vehicle and invoicing the customer was that she was waiting for a front bar to be delivered from the USA. Ms Ward’s original intention was to alter invoice 1326 from a balance sheet item to a profit and loss item without changing the value of the invoice. This transaction was performed on 30 March 2017.

[44] On 31 March 2017 Ms Ward produced an invoice from a system operated by The River Group referred to as Crashzone, representing what she thought the final invoice would be, taking into account supplementary items for mechanical work and extra parts. The new version of the invoice was entered into the accounting system as a profit and loss sale item and taken into the quarterly figures, while the original invoice 1326 was reverted back to a balance sheet item. Ms Ward maintained that this was correct accounting procedure as invoice 1326 was still a liability at that point and if it had been altered to a sale it would not show as a liability in the accounts. Ms Ward said that she needed to keep the liability in the system to ensure that it was recorded for payment purposes while ensuring that it could rightfully be taken up into the sales figures. Ms Ward said that both Mr Hill and Ms Robson were aware of what she had done with the invoice and tendered a text message and emails referring to job 1583 to which the invoice numbered 1326 related, indicating that the job had been factored and that Mr Hill had asked for data to be provided as it was “stuffing up ALL the reports.” 29 Ms Ward said that these exchanges indicated that Mr Hill was aware that the invoice was in the system and that it was not in its final form.

[45] Ms Ward said that after weeks of waiting for the front bar to arrive, she was finally able to invoice the customer for payment. On 15 May 2017 Ms Ward altered the amount of invoice 1326a in the accounting package. Ms Ward maintained that at no time were both invoices sale or a profit and loss items at the same time.

[46] In her oral evidence Ms Ward said Ms Ward said that normally factoring does not take long to be paid and occurs when you finish a job. The factoring company pays the repairer and then sends the invoice to the insurance company or the customer. The Zarb Transport job was a large one with many parts to be purchased and cash flow was light so that TRG Admin needed funds immediately. As a result there was a large gap between the time that the invoice was factored and the time that the invoice was paid by the customer.

[47] With respect to the Zarb Transport job, the figure on the invoice of $38,723.47 was derived from figures in Crashzone and an accounting system referred to as Xero, which for that job totalled $34,794.06 exclusive of GST. That figure was the amount the insurance company had authorised for the job in question. Ms Ward tendered documentation and referred to documents tendered by Mr Hill to establish that the amount of $34,794.06 became $38,723.47 with the addition of GST. Documentation tendered by Ms Ward also demonstrated that TRG Admin assigned a debt for the amount of $38,273.47 to Premium funding on 27 February 2017. Premium Funding paid the amount of $37,545.78 (which was the amount of $38,273.47 less the factoring fee) to TRG Admin on 3 March 2017.

[48] Ms Ward said that the payment was then reversed so that it could stay in the system but go into the balance sheet system because TRG Admin owed that money to Premium Funding. By the end of March 2017 the job was done except that the Company was waiting on a front bar to come from America. This meant that although the job was finished, it could not be invoiced. Another invoice was created to take up that amount in figures on 31 March 2017. The invoice numbered 1326a was then created to more accurately reflect what TRG Admin expected to receive from the insurance company because of additional parts and labour referred to as “supplementaries”. The two invoices were not profit and loss items at the same time. One was a balance sheet item and one was an income item. The insurance company would not accept the invoice for $45,027.47 and altered the amount payable to $39,114.13. Ms Ward also maintained that Mr Hill could not have thought that the amounts were cumulative because they did not appear at the same time in the profit and loss statement. Ms Ward put to Mr Hill that the invoices in question were not sitting in the profit and loss statement at the same time.

[49] Ms Ward said that the real reason for her dismissal was that Mr Hill had forced her to submit fraudulent documentation in support of the invoice numbered 1326. According to Ms Ward, the fraudulent documentation was invoices for parts which Mr Hill had insisted on marking up by an amount of 30%. Ms Ward said that the insurance companies involved in the Zarb job had requested original documentation and Mr Hill had altered that documentation and required her to submit it to the insurance companies. When this had been discovered, Mr Hill had informed the insurance companies that Ms Ward was responsible and that she had been dismissed. Ms Ward tendered an invoice from a supplier said to demonstrate that there was a practice within The River Group of altering prices on such invoices to increase margins and then charging increased amounts to insurers. Ms Ward said that Ms Robson was aware that Mr Hill was trying to “throw [Ms Ward] under the bus” by insinuating that Ms Ward was responsible for the fraud. Ms Ward said that Ms Robson paid Ms Ward’s accrued annual leave without Mr Hill’s knowledge to ensure that she received that payment.

[50] Under cross-examination, Ms Ward maintained that the Crashzone figures used by Mr Hill for his benchmarking reports would have shown the figure of $45,000.00 moving from March to April and they would not have appeared at the same time in both months. Ms Ward also maintained that the figures relied on by Mr Hill were benchmarking figures and sales had not been duplicated in those figures. The total amount of sales was accurate and the multiple figures in the invoices had not appeared in the profit and loss statements at the same time. Ms Ward conceded that Mr Hill may have misunderstood the figures but maintained that he should have sought an explanation from her before dismissing her for theft and fraud.

[51] In relation to the allegations that she had pressured the payroll clerk to pay her son, Ms Ward said that both her son and her daughter were employees of The River Group at various times and her son was working on the date of Ms Ward’s dismissal. Ms Ward said that she had a practice of splitting her wage with her children which lowered her tax obligations and provided them with a consistent income history which would assist her children if they wanted to apply for credit. Ms Ward said that this had no impact on TRG Admin as the total amount payable in wages did not change regardless of who it was being paid to. Ms Ward also said that she would have been paid that amount regardless of whether she split it with her children or not. There was also a benefit to The River Group as less superannuation was payable on the amount.

[52] Ms Ward also disputed the allegations that supplier invoices had not been entered into the accounts system and maintained that Mr Hill had provided no evidence to support it. Ms Ward said that she had a good rapport with suppliers and on occasion they extended informal credit until the end of the month. This arrangement worked well for Ms Ward in managing cash flow and suited suppliers as they did not have to warehouse items until they were paid for. Ms Ward said that when the news of her dismissal reached some of those suppliers became nervous and issued invoices immediately. Ms Ward said that had there been a discussion with her before her dismissal she could have shared information about those suppliers who had extended informal credit.

[53] In response to Ms Ward’s evidence Mr Hill maintained that the two invoices showed up in both the first and second quarters of 2017. When questioned by Ms Ward as to what proof he had in relation to this assertion, Mr Hill said that he did not bring it with him to the hearing because he did not know he was going to be asked about this matter. Mr Hill also said that the number of entries relating to the Zarb job was not normal. In response to the proposition that he could have made a mistake with the numbers by not looking at the balance sheet, Mr Hill said he looked at the figures he always looks at and Ms Ward knows these figures. Mr Hill also maintained that the figures he looked at were out by $40,000.00. In response to a question about who gave him those numbers, Mr Hill said:

[54] Mr Hill was also offered an opportunity to respond to the allegations about alterations to supplier invoices and the documentation tendered by Ms Ward in support of those allegations, and declined to do so.

3.3 The manner in which Ms Ward’s dismissal was carried out

[55] Ms Ward said that on 9 August 2017 she was seated at her desk with a customer when Mrs Marcia Hill, Mr Hill’s wife, and a security guard arrived at the office. Ms Ward greeted Mrs Hill and the security guard and exited the office to finish assisting the customer. Ms Ward then greeted another customer, and an assessor from AAMC, a motor loss assessment provider. Ms Ward said she then re-entered the office and again greeted Mrs Hill warmly. She was then told by Mrs Hill that her employment was terminated, and that Mr Hill had asked her to be the messenger as he had prior work commitments and could not be there in person. Mrs Hill then handed Ms Ward the termination letter set out above.

[56] Ms Ward said that became distressed, and did not read the letter when it was given to her. Ms Ward also said that Mrs Hill told her that she had not been getting quotes checked and following procedures. Ms Ward then gathered her personal belongings and attempted to leave the office via the workshop entry. Ms Ward said Mrs Hill and the security guard attempted to stop her from using that exit. Ms Ward said this was to prevent her from communicating with other employees who had gathered outside, and that she proceeded to exit without any fuss or disturbance. No evidence was tendered by Mr Hill in relation to the termination process. A statement was provided from Mrs Hill which I have not had regard to given that she was not available for cross-examination despite Mr Hill having been warned that this would be required if he wished to tender statements.

3.4 Other relevant matters

[57] In November 2015, Ms Ward’s Mother was diagnosed with a terminal illness and passed away in July 2016. During that period, Ms Ward said she had taken some leave in consideration of her Mother’s condition, but continued to perform her role as Manager to the best of her abilities. In November 2016 Ms Ward said she was left devastated by a breakdown in her marriage, and was placed into a very difficult financial situation in January 2017. Ms Ward said she took annual leave and personal leave in January 2017 and February 2017, to take time to recuperate and “get back on track”.

[58] I am not satisfied that there was a valid reason for Ms Ward’s dismissal. Mr Hill made serious allegations of theft and fraud against Ms Ward and was not able to substantiate those allegations at hearing. It was apparent that there was no substance to those allegations. Ms Ward provided a reasonable explanation for the invoices that Mr Hill claimed were a duplication and Mr Hill was unable to provide any basis upon which I could be satisfied that the explanation provided by Ms Ward should not be accepted and that her conduct was deceitful or fraudulent, much less that it amounted to theft. I am also of the view that it is probable that any issue with the duplication was the result of a misunderstanding on the part of Mr Hill or an attempt by Mr Hill to find a basis to dismiss Ms Ward for some ulterior reason.

[59] Allegations of theft and fraud are extremely damaging for a dismissed employee and can have devastating consequences on the ability of a dismissed employee to obtain other employment. This is particularly so when the employee has been engaged in an accounting or finance role. As I repeatedly informed Mr Hill in a number of preliminary conferences and mentions of this matter, an employer making serious allegations of theft and fraud needs to place evidence before the Commission to establish on the balance of probabilities that the conduct occurred, or in the case of a small business, that there were reasonable grounds for the employer to believe that the conduct occurred. When confronted with Ms Ward’s evidence in relation to the alleged duplicated invoices, Mr Hill had no response, other than to state that he did not bring necessary documents to the hearing to prove his case.

[60] I am not satisfied that there was any deceit, fraud or theft on the part of Ms Ward. Even if the small business fair dismissal code applied, Mr Hill would not have succeeded with respect to those allegations in establishing that he had reasonable grounds for believing that Ms Ward was guilty of deceit or theft or fraud or any similarly serious misconduct so as to constitute a valid reason for dismissal. Quite simply, Mr Hill made some very damaging allegations about Ms Ward and was unable to provide any proof to substantiate them, much less proof to the required standard.

[61] I do not accept that any issue with checking quotes was sufficiently serious to constitute a valid reason for dismissal or that Ms Ward was responsible for any financial losses for the Mackay Branch, if there were such losses. The overwhelming impression I gained was that Mr Hill decided that he wanted to remove Ms Ward and set about finding a basis upon which to do so. I also accept that it is probable that there is some truth in Ms Ward’s allegation that she was made a scapegoat for issues with supplier invoices that had been amended in order to provide a mark-up for The River Group. Mr Hill provided no evidence in response to those allegations and the documents produced by Ms Ward to support the allegations appeared to substantiate them, in that there appeared to be changes made to the prices of items on a supplier invoice. Further, while there may have been some concern on the part of Mr Hill about the performance of the Mackay Branch, I do not accept that the performance was so poor that dismissal of Ms Ward was justified on that basis.

[62] Ms Ward was dismissed for reasons related to her conduct. I do not accept that Ms Ward was notified of the reasons for her dismissal. It is apparent from the evidence that Ms Ward was notified only that she had failed to follow procedure with respect to checking quotes. Ms Ward was not notified that she was being dismissed for deceit, theft or fraud. The failure to notify Ms Ward of all of the reasons for her dismissal, and particularly the substantive reason that Mr Hill believed that she had engaged in deceit, fraud and theft with respect to the alleged duplicated invoices, meant that Ms Ward was not given an opportunity to respond to these very serious allegations which were a substantial part of the reasons for her dismissal.

[63] Such an opportunity is of significance. It is particularly significant in cases where the allegations of misconduct are not able to be substantiated at hearing and where the dismissed employee establishes that he or she has not engaged in misconduct alleged and relied on by the employer as valid reason for dismissal. In such cases, an opportunity to respond to the allegations may have changed the outcome. In the present case, Ms Ward provided an explanation for the invoices upon which Mr Hill based the allegations of serious misconduct. Mr Hill was unable to refute the explanation for the alleged duplicate invoices that was provided by Ms Ward in her evidence to the Commission. I doubt Mr Hill could have refuted the explanation provided by Ms Ward if he had taken the time to have a discussion with her. Had Ms Ward been given an opportunity to address the allegations before dismissal, Mr Hill may have accepted her explanation and decided not to dismiss her. Mr Hill did not even attend the meeting where the dismissal was effected. The fact that he dispatched Mrs Hill to effect the dismissal and that Mrs Hill brought a termination letter with her to the meeting, further evidences that Ms Ward had no opportunity to respond to the allegations about her conduct and the decision to dismiss Ms Ward had already been made.

[64] Ms Ward did not request a support person in the discussions relating to the dismissal. This is not surprising given that Ms Ward was effectively ambushed by Mrs Hill and had not had notice of a discussion at which her employment was going to be terminated. To the extent that Mr Hill relied on unsatisfactory conduct in relation to the alleged failure of Ms Ward to have quotes checked, I do not accept that Ms Ward was warned about her unsatisfactory performance. The email tendered by Ms Ward in which Mr Hill included comments about following procedure does not constitute a warning. The comments simply inform Ms Ward that she has not followed policy without further informing her that if she fails to comply with the policy in future, she may be subject to disciplinary action including termination of her employment.

[65] The River Group is not a small business as defined in s. 23 of the Act. However the Group has approximately 40 employees and is not a large business. I have had regard to the fact that the size of the employer’s enterprise contributed to the manner in which the dismissal was effected. I have also had regard to the fact that The River Group does not have a dedicated human resource management specialist or expertise in this field. However, regardless of the size of an employer’s enterprise it is not acceptable to dismiss an employee for alleged theft, fraud and deceit, in circumstances where there is no reasonable basis for such allegations and they cannot be substantiated.

[66] I also consider it relevant that Mr Hill had known Ms Ward for a lengthy period and knew of her personal circumstances. Ms Ward had worked for The River Group in various capacities for almost six years and had been promoted during that time to Branch Manager of the Mackay operations. Ms Ward deserved better treatment than to be labelled as deceitful and to be accused of theft and fraud in circumstances where those allegations could not be substantiated either at the time she was dismissed or in the hearing conducted by the Commission in relation to Ms Ward’s unfair dismissal application.

[67] I am satisfied that Ms Ward’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable. The dismissal was harsh because it had significant consequences for Ms Ward’s economic and personal circumstances. Ms Ward was dismissed for deceit, theft and fraud in circumstances where she did not engage in any such misconduct. If Ms Ward had any issues with work performance associated with failing to have quotes checked or the economic performance of the Mackay Branch, dismissal was disproportionate to the gravity of those issues. The dismissal was unjust because Ms Ward was not guilty of deceit, theft or fraud and the dismissal was unreasonable because it was decided on inferences that could not reasonably have been drawn from the material before Mr Hill.

[68] There are other matters that I also consider are relevant to the consideration of whether Ms Ward’s dismissal was unfair. Mr Hill said that he had not replaced Ms Ward’s position but had divided the work she previously performed among other employees. If Ms Ward had been dismissed for that reason, she would have been entitled to redundancy payments. Further, Mr Hill failed to refute the evidence of Ms Ward that she was being made a scapegoat for irregularities with insurance documentation. Given Mr Hill’s inability to demonstrate the validity of his allegations against Ms Ward or that he had a valid reason for dismissing her, it is probable that Mr Hill had some ulterior motive for the dismissal and this is a further factor relevant to its unfairness. I also consider it relevant that Ms Ward did not receive any payments in lieu of notice. This is inconsistent with the termination letter that Ms Ward was given which stated that Ms Ward was being given a notice period of five weeks which was not required to be worked.

[69] Given that I have found that Ms Ward’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Ms Ward was protected from unfair dismissal and that she has been unfairly dismissed. I am also of the view that Ms Ward should have a remedy in respect of her unfair dismissal. Ms Ward did not seek reinstatement. In my view reinstatement is not appropriate given the breakdown of the relationship between Mr Hill and Ms Ward, for reasons not the least of which is the fact that Mr Hill made serious allegations against Ms Ward in relation to misconduct of which she was innocent.

[70] I have made the necessary findings that are prerequisite to awarding compensation. In relation to the assessment of compensation, s. 392 of the Act provides as follows:

[71] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Ms Ward for her unfair dismissal.

The effect of the order on the viability of TRG Admin – s. 392(2)(a)

[72] There is no evidence that any order of compensation will affect the viability of TRG Admin. Despite the relevance of profit and loss statements to the allegations made by Mr Hill, he failed to produce those statements to the Commission and there is no evidence upon which I could be satisfied that the order for compensation I intend to make would affect the viability of The River Group of which TRG Admin is an associated entity,

Length of Ms Ward’s service – s. 392(2)(b)

[73] Ms Ward was employed at TRG Admin from June 2011 to August 2017, a period of just under six years.

Remuneration Ms Ward would have or would likely have received – s. 392(2)(c)

[74] Mr Hill states that Ms Ward should have been dismissed 12 months earlier. Other than this bald statement there is no evidence of any issues with Ms Ward’s conduct or work performance prior to the allegations that led to her dismissal on 9 August 2017 that would be sufficient to justify Ms Ward’s dismissal. Ms Ward’s evidence is that she planned to relocate in January 2018 and would have remained in employment until that time, a period of a further 20 weeks.

[75] In all of the circumstances I do not accept that Ms Ward would have remained in employment for a further 20 weeks. Mr Hill wanted to terminate Ms Ward’s employment and could have done so by making her position redundant or by commencing a performance management process in relation to his concerns about the manner in which Ms Ward was operating the Mackay Branch. Mr Hill might also have issued Ms Ward with a warning about the need to have quotes checked or the performance of the Mackay Branch and Ms Ward may or may not have improved her work performance in relation to these matters from Mr Hill’s perspective.

[76] Doing the best that I can on the basis of the evidence, I find that Ms Ward would not have remained in employment for a period of more than twelve weeks after 9 August 2017. Based on the payslips provided by Ms Ward indicating that she was paid $37 per hour for a 30 hour week or a total of $1,009.00 per week, Ms Ward would have earned an amount of $13,080.00 in the twelve week period following her dismissal.

Ms Ward’s efforts to mitigate loss – s. 392(2)(d)

[77] Ms Ward said in her evidence to the Commission that she has applied for almost 60 positions since her dismissal and has not been successful in these applications. Ms Ward further states – and I accept – that her difficulty obtaining alternative employment is compounded by the reasons for her dismissal. I accept that Ms Ward has made reasonable attempts to mitigate the loss of her employment and I do not intend to make any deduction on this basis.

The amount of any remuneration earned since dismissal – s. 392(2)(e)

[78] Ms Ward has earned no remuneration from other sources since her dismissal. Further, Ms Ward did not receive any payment in lieu of notice and was paid only her accrued leave entitlements on termination of employment.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)

[79] Ms Ward had not obtained full time work at the time of the Hearing and given the period of time I have used as the basis for the calculation of compensation does not extend to the point at which the Order for compensation is made, this factor is not relevant in the present case.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[80] I consider that Ms Ward’s income splitting arrangement is relevant for the calculation of compensation. Ms Ward has produced pay slips which indicate that she worked 30 hours a week notwithstanding that she was a full time employee and was paid at the rate of $37 per hour. I assume that this is the method by which income splitting was arranged. I do not think it appropriate to compensate Ms Ward for lost income which she did not receive due to the arrangements to split her income that Ms Ward put into effect. Accordingly, I intend to compensate Ms Ward for lost income on the basis of the income shown on her payslips. I have also had regard to the fact that as a long standing employee, and in the absence of any basis for concluding that Ms Ward had engaged in serious misconduct, she should have been paid notice on termination of her employment in the amount of five weeks wages.

Deduction for misconduct

[81] Ms Ward was not guilty of misconduct and I make no deduction on that basis.

[82] I conclude as follows:

[83] In all of the circumstances of this case I consider that it is appropriate that I make an Order for compensation. The Order will issue with this Decision and will require TRG Admin to pay compensation to Ms Ward in lieu of reinstatement of a gross amount of $13,080.00 to be taxed according to law. The order will require the payment to be made within 21 days of the date of this Decision.

DEPUTY PRESIDENT

Appearances:

Ms S. Ward appeared on her own behalf.

Mr. R. Hill appeared on behalf of the Respondent.

Hearing details:

Brisbane.

10 January.

2018.

Printed by authority of the Commonwealth Government Printer

<PR601100>

 1   Exhibit A1 Witness Statement of Stephanie Ward filed 10 November 2017; Exhibit A2 Further Witness Statement of Stephanie Ward filed 27 November 2017; Exhibit A3 Third Witness Statement of Stephanie Ward filed 10 November 2017

 2   Exhibit R1 Witness Statement of Russell Hill 22 October 2017.

 3   Further Response of TRG Admin, 17 November 2017 (Document 3).

 4   Further Response of TRG Admin, 17 November 2017 (Document 2).

 5   Response of TRG Admin, 27 October 2017 (Document 8).

 6   Response of TRG Admin, 27 October 2017 (Document 8).

 7   Exhibit A3 Annexure “1J”.

 8   Exhibit R1 Witness Statement of Russell Hill 22 October 2017.

 9   Exhibit A3 Annexure “1D”.

10 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

11 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

12 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

13 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 14   Bista v Glad Group Pty Ltd [2016] FWC 3009.

 15   (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

 16   Ibid at 362-363.

 17   Ibid at 450.

 18   Ibid at 451.

19 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 20   Ibid at 2.

 21   Statement of Mr Russell Hill filed 17 November 2017 at Document 6.

 22   Transcript of 10 January 2018 at PN94

 23   Exhibit A1 Annexure 2G

 24   Transcript of 10 January 2018 at PN110-112.

 25   Ibid at PN140 - 141

 26   Ibid at PN142 - 143

 27   Exhibit A1 Annexure 2C

 28   Exhibit A1 Annexure 2-I-1.

 29   Exhibit A1 Annexure 2-I-K.