DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Taylor
v
Auto Loans Group Pty Ltd T/A AutoCarLoans.com.au
(U2017/10648)

Application for an unfair dismissal remedy.

Introduction

[1] Jeremy Taylor (Mr Taylor) was employed by Auto Loans Group Pty Ltd (ALG) as a Finance Consultant from 6 June 2016 until his employment was terminated on 25 September 2017.

[2] On 3 October 2017, Mr Taylor applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Taylor says his dismissal was unfair both procedurally and because he was never given the chance to resign. He says ALG embarked on a campaign to dismiss him, culminating in an alleged failure to pay commission on termination.

[3] On 9 October 2017, ALG responded to the unfair dismissal application. It says the dismissal was not unfair because it was consistent with the Small Business Fair Dismissal Code (the Code) and that Mr Taylor was dismissed once it was discovered that he was secretly carrying on a competing business and because of his failure to attend work during business hours.

[4] The matter was conciliated on 1 November 2017 and 9 January 2018 but was not settled. After seeking the views of the parties about whether a conference or hearing should be held to deal with the matter, I convened a determinative conference on 18 January 2018 in Melbourne.

[5] There was some contention about whether Mr Taylor’s father should be permitted to represent his son in the proceeding. However, there was no material before me to suggest that he was being paid for his services and accordingly no requirement for permission to appear arose.

[6] Five witnesses gave evidence in the proceeding:

Jeremy Taylor, Applicant

Ross Taylor, Applicant’s father

Michael Campbell, ALG Director

Andrew Tushuizen, ALG Director

Stephen Perrott, ALG General Manager

Preliminary matters

[7] The application was filed within the 21 day timeframe required by the Act.

[8] Section 382 of the Act sets out when a person is protected from unfair dismissal. Under section 382, a person is protected from unfair dismissal if, at the relevant time:

•  they have completed at least the minimum employment period; and

•  they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[9] It is common ground that Mr Taylor’s period of employment with ALG was longer than the minimum employment period, and that his annual income was less than the high income threshold. Mr Taylor is protected from unfair dismissal under the Act.

[10] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied they have been dismissed; the dismissal was harsh, unjust or unreasonable; and if relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy.

[11] Although there was some confusion on the matter, the parties ultimately agreed that Mr Taylor was dismissed from his employment and the evidence supports that position. I find that Mr Taylor was dismissed by ALG.

[12] No issue of redundancy arose and I am satisfied that the dismissal was not a case of genuine redundancy.

[13] The issue in this case is whether the dismissal was consistent with the Code. If not, it will also become necessary to decide whether the dismissal was harsh, unjust or unreasonable.

Background

[14] The following facts are either agreed or uncontested.

[15] On 11 September 2013, Mr Taylor became a director of ACN 131 892 594, which from 1 September 2014 was named Figured Out Pty Ltd (Figured Out). 1

[16] On 6 June 2016, Mr Taylor commenced employment with ALG on a full time basis. 2 The Directors of ALG are Mr Tushuizen and Mr Campbell (the Directors).3

[17] Mr Taylor was employed pursuant to an Employment Agreement dated 23 May 2016. 4

[18] Between 27 July and 1 August 2016, Mr Taylor’s father and Mr Taylor exchanged emails about securing funding for “Go Vita”, a vitamin retail business of which Mr Taylor is a Director. 5

[19] At some point in 2017, Mr Taylor began to seek employment with another finance broker. 6

[20] On 10 August 2017 at 12.01pm, Mr Taylor forwarded an email from his ALG email account on his iPhone to jeremy@figuredoutfinance.com. 7 The email attached an “Inspection Report” and was sent with an ALG signature block:

Jeremy Taylor

Finance Consultant

AutoCarLoans.com.au

Mobile: 0424 413 309

[21] On 5 September 2017, Mr Taylor was absent from work during the day. 8 Mr Perrott sent him a message saying “And where have you vanished to this time????”. Mr Taylor responded “Uranus”.9

[22] On 7 September 2017, Mr Taylor was absent from work until midday. 10 Mr Perrott sent him a message at 11.57am saying “R U planning on coming in at all today or is it not worth your while?”.11

[23] On 8 September 2017, Mr Taylor sent Mr Perrott text messages at 8.08am and 11.42am advising that he was meeting clients in South Yarra and Nunawading. 12 He did not attend the office until approximately 3.00pm.13

[24] On 11 September 2017, Mr Taylor was absent from work during the middle of the day. He sent an email to Mr Perrott at 1.02pm advising that he was getting lunch. At 2.20pm Mr Perrott emailed Mr Taylor asking where he was. At 2.25pm Mr Taylor replied by email from his iPhone that he was at his mother’s house in Surrey Hills helping her “sell up”. His signature block had a change in title, from Finance Consultant to Finance Broker. 14

[25] On 12 September 2017, there was a meeting in the ALG boardroom between Mr Taylor, Mr Perrott and Mr McPherson to discuss Mr Taylor’s attendance. 15

[26] On 15 September 2017, Mr Taylor was late arriving to work and then was absent from work again in the afternoon. 16

[27] On 16 September 2017, Mr Taylor sent an email from jeremy@figuredoutfinance.com to a client of ALG regarding finance for an Audi S3. The email was sent with a signature block showing ALG’s physical address but a different mobile number and email address, with no reference to ALG:

Jeremy Taylor

Finance Broker

Suite 202-689 Burke Road, Camberwell, VIC, 3124

M: 0412 366 074 | Email: jeremy@figureoutfinance.com

[28] On 18 September 2017, Mr Taylor advised that he was running late and would be in at 9.05am. 17 He was absent again later that afternoon.18 Mr Taylor was called into the boardroom and told that his behaviour was unacceptable. Mr Taylor agreed and apologised.19

[29] On 19 September 2017, Mr Taylor left work at approximately 3.00pm and did not return. 20 Mr Perrott sent him a text message saying “Are you planning on being back this afternoon?” Mr Taylor replied “Not worth it”.21

[30] At 5.28pm on 19 September 2017, Mr Taylor sent an email to Atlas Equipment Finance (Atlas) with the heading “Figured Out P/L Consultancy Agreement” and attaching a consultancy agreement for the provision of “equipment finance brokering” services to Atlas (the Consultancy Agreement). The document attached to the email was titled “FIGUREDOUT-ATLAS CONSULTANCY AGREEMENT 19-09-2017.pdf”. It was sent from jeremy@figuredoutfinance.com over the signature block at [27] above. 22

[31] The email included a note to Atlas from Mr Taylor saying:

“Can I suggest a start date of the 6th of November. This could be earlier, I’d imagine I would be moved of where I am currently fairly quickly, so there could be a few days prior to this I can start.” 23

[32] On 20 September 2017, Mr Taylor was again absent from work during the day. 24 He was called into the boardroom and there was a heated discussion between Mr Taylor and Mr McPherson about Mr Taylor’s attendance.25

[33] On 21 September 2017, Mr Taylor advised ALG at 8.48am that he would be at work in approximately 4 hours. His email was sent over an ALG signature block with the mobile number identified at [20] above. 26

[34] At 7.25am on 22 September 2017, Atlas sent Mr Taylor an email in relation to the Consultancy Agreement and proposed a telephone call later that day to discuss. 27

[35] On 22 September 2017, Mr Taylor was absent in the middle of the day. Mr Perrott emailed him asking where he was. Mr Taylor replied “Just in camberwell be back never”. He returned to the office later that afternoon. 28

[36] Over the weekend of 23-24 September 2017, the Directors discovered information to suggest Mr Taylor was establishing or running a business in competition with ALG. 29

[37] On 25 September 2017, a meeting was called at 5.00pm between Mr Taylor and the Directors where Mr Taylor’s employment was terminated. 30

[38] That evening, Mr Taylor had a phone call with Atlas and the following day, Atlas emailed Mr Taylor a signed copy of the Consultancy Agreement. 31

[39] On 28 September 2017, at Mr Taylor’s request, ALG sent an email confirming the termination of his employment to Mr Taylor’s email address at jeremydtaylor1@gmail.com. 32

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[40] The Code applies to small business employers with less than 15 employees. 33 A person is not unfairly dismissed if the dismissal is consistent with the Code and immediately before dismissal or at the time notice of the dismissal is given, whichever is earlier, the employer is a small business employer.34

[41] ALG says it was a small business employer at the relevant time because together with its associated entities, it employed 13 employees. 35 ALG says it complied with the Code in relation to the dismissal.

[42] Mr Taylor disputes that ALG was a small business employer at the relevant time and says there were at least 15 employees at that time, because the Directors are employees of ALG and ALG or its associated entities may also have had other employees not disclosed in the proceeding.

Small business employer - associated entities

[43] In calculating the number of employees employed by an employer at a particular time, employees of both the employer and its associated entities are counted. Associated entities are defined by reference to section 50AAA of the Corporations Act 2001 (Cth).

[44] ALG submits that on the day of Mr Taylor’s dismissal, its associated entities were:

•  Burke Rd Leasing Pty Ltd

•  Magniva Finance Pty Ltd

•  McPherson WOFTAM Trust

•  Melbourne Property Finance (Vic) Pty Ltd

•  Melbourne Property Finance Trust

•  Odin Marketing Pty Ltd.

[45] From this list, ALG says it had 12 employees and Magniva Finance Pty Ltd (Magniva Finance) had one. No other entity had employees. Both Mr Tushuizen and Mr Perrott confirmed in evidence that Mr Perrott, who is General Manager for ALG, was the employee of Magniva Finance.

[46] Mr Taylor did not dispute the identified associated entities of ALG and I have no reason to doubt the information provided. I find that each of the companies listed in [44] above were associated entities of ALG at the relevant time.

[47] There was no other reliable information before me to suggest that any of ALG’s associated entities had employees other than those identified above. A printout of a “Zoominfo” webpage dated 12 January 2018 was tendered, which indicates that “Magniva Finance Company” had 12 employees. However, there is nothing to identify the source of that information or what “Zoominfo” is in relation to ALG, and Mr Tushuizen gave evidence that the information was out of date. 36 The printout is dated more than three months after the dismissal. I am not persuaded that it has any probative value and I have given it no weight.

[48] Putting aside for a moment the question of whether the Directors were employees, I am satisfied on the material before me that ALG and its associated entities had 13 employees on the day of Mr Taylor’s dismissal.

Small business employer - directors as employees

[49] Mr Taylor contends that the Directors were also employees of ALG because Mr Tushuizen is cited in Mr Taylor’s Employment Agreement as “Managing Director” and his “Immediate Manager”. 37 Stephen Perrott is also referred to as Mr Taylor’s “Immediate Manager”.38

[50] Mr Taylor otherwise relies on the United Kingdom cases of Stack v Ajar-Tec Ltd 39 and Anderson v James Sutherland [Peterhead] Ltd40 to argue that the Directors were “working directors” and thus employees of ALG. He says that as ALG ‘remained silent’ on how many employees it and its associated entities had, the Commission ought to infer both that the Directors were employees and that another director of an associated entity of ALG, Ms Whitney McPherson, was an employee at the relevant time.

[51] The first thing to observe is that I do not agree that ALG has remained silent on the question of how many employees its associated entities employed, given the various documents it filed on that question in this proceeding.

[52] The second goes to the relevance of the cases relied upon by Mr Taylor. The former was decided under the UK Employment Rights Act 1996, a different statutory regime, while the latter has been cited in the Commission in support of a general observation that directors of a company can also be employees. 41 To the extent that the cases relied on by Mr Taylor have application, they appear to me to be consistent with the observations of Buchanan J in ACE Insurance Limited v Trifunovski42 that contracts of employment are contracts for personal service, as opposed to contracts that truly permit discharge of the contract in another fashion or by another person – for example, a contract permitting unlimited delegation or a contract which does not actually compel the performance of work but pays only on results.

[53] A dispute about whether a contract of employment exists is resolved by reference to the true character of the relationship between the alleged parties. This requires examination of the various facets and circumstances of the relationship. 43 Each case turns on its own facts, as established by the evidence adduced.

[54] In order to find that the Directors were employees of ALG, I would need to be satisfied that a contract of employment existed between them. 44 Mr McPherson gave evidence that he is involved in high level strategic, marketing and technology matters and is responsible for hiring and firing employees for ALG, but is not involved in its day to day dealings. Neither he nor Mr Tushuizen have an employment agreement nor any specific roles or duties. He derives income from ALG through dividends as a shareholder in Odin Marketing45 and has no entitlement to wages or superannuation. He is not covered by ALG’s workers compensation policy. Mr Tushuizen’s evidence and submissions suggest a similar relationship with ALG, except that his shareholding and entitlement to dividends is derived from other associated entities of ALG.46

[55] No evidence put forward by Mr Taylor contradicted this evidence, and references to Mr Tushuizen’s role in Mr Taylor’s Employment Agreement is not evidence of a contract of employment between ALG and Mr Tushuizen.

[56] There is no other evidence to show that either of the Directors were employees of ALG. The evidence simply does not reach the requisite threshold. I am not satisfied that there was a contract of employment between ALG and either of the Directors.

[57] There is also no evidence to support the assertion that ALG withheld information from the Commission about the number of employees of its associated entities, or to show that it had more than 13 employees immediately before the dismissal, or at the time notice of the dismissal was given (which in this case, was contemporaneous).

[58] I find that ALG was a small business employer at the relevant time. 47

Was the dismissal consistent with the Code?

[59] The Code provides as follows:

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[60] In this matter, the Code is to be applied as it relates to ‘summary dismissal’ because the evidence establishes, and it is not in dispute, that the dismissal had immediate effect.

[61] Under the Code, it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Examples include theft, fraud, violence and serious safety breaches although these categories are not exhaustive. It is sufficient for the purposes of the Code, although not essential, if an allegation of theft, fraud or violence has been reported to the police and there were reasonable grounds for making the report. There was no suggestion that any such report had been made in this case.

[62] In the present context, the Commission’s role is to determine whether the employer genuinely held a belief that the employee had committed an act of serious misconduct and whether that belief was, objectively speaking, based on reasonable grounds. 48 It is not necessary to determine whether the serious misconduct did in fact occur or that the employer was correct in the belief that it held.49

[63] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services, a Full Bench of this Commission considered the proper application of the ‘Summary Dismissal’ section of the Code and concluded that it applies to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009.

[64] Regulation 1.07 provides as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i)  theft; or

(ii)  fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.’

[65] Given its ordinary meaning, serious misconduct is conduct which strikes at the heart of the employment relationship. 50 That is, the employee has repudiated the contract of employment or one of its essential conditions.51

[66] Certainly, ALG believed Mr Taylor’s conduct to be sufficiently serious to justify immediate dismissal. Whether that belief was reasonable in the circumstances depends on the information it had available to it at the time and the steps it took to verify the information before giving effect to the dismissal.

[67] Mr McPherson gave evidence that on the weekend of 23-24 September 2017, he uncovered information to suggest that Mr Taylor was carrying on a competing business to ALG. 52 The information included:

•  A website for Figured Out Finance with the words “Our new website is launching soon” and contact details for Mr Taylor at mobile 0412 366 074 and jeremy@figuredoutfinance.com;⁵³

An email from jeremy@figuredoutfinance.com in relation to a client of ALG (“Invoice Request – Mursell”); 54 and

Email correspondence between Mr Taylor and his father between 27 July 2016 and 1 August 2016 about funding for “Go Vita” and attaching a “Go Vita Business & Finance profile 29-7-16”. 55

[68] The information suggested that, at least by September 2017, Mr Taylor had changed his title to Finance Broker in electronic communications, substituted his mobile number with another and begun using a figuredoutfinance.com email to arrange deals, including in relation to ALG relationships. 56 The information came as a surprise to ALG, and there is no evidence to suggest that Mr Taylor sought to gain ALG’s consent for activities of this nature at any time.

[69] Mr McPherson gave evidence that the matter was discussed with Mr Taylor in the meeting on 25 September 2017 and that Mr Taylor admitted to conduct of the kind alleged, providing additional detail including working with a Queensland Finance Broker, “Julian” and receiving commission for procuring vehicles. 57

[70] Mr Taylor denied carrying on a competing finance business to ALG and said that Figured Out was a family company and a client of Melbourne Finance. 58 However, he agreed that activities carried out for Figured Out were both during business hours and after hours.

[71] Mr Taylor’s witness statement confirms that at least some of the conduct was admitted to ALG in the meeting on 25 September 2017:

“I admit advising Mr McPherson and Mr Tushuizen that I had done one or two deals for my own private companies through Melbourne Finance, and the commission payable went to my family company. However, these were not clients of my employer.” 59

[72] Mr Taylor said that he told Mr McPherson he “had done deals for Ross”, his father, and agreed that he had been asked to go away from the meeting and prepare a list of business activities he had been involved in to provide to ALG. He said that when he looked at what he had, he “ran through other work I had been doing along with finance broking, outside of hours” and there wasn’t much there. 60

[73] In response to the information uncovered by ALG over the prior weekend, Mr Taylor said he was referring to Melbourne Finance in the email to his father on 27 July 2016 when he said he had “spoken to some people here” (at ALG) about the Go Vita finance deal. Mr Taylor’s father, Ross, gave evidence that he had arranged finance for Go Vita with Mr Taylor as the finance applicant and that Mr Taylor had received a benefit of $1500 from the finance deal sourced with “Prosper” through Melbourne Finance, which also funds ALG. 61 Mr Taylor described the payment as a brokerage fee and clarified that he was the one who arranged finance for Figured Out, because that was “his profession”.

[74] On the Figured Out Finance website, Mr Taylor said he built it in 2016 in connection with his Certificate IV studies, and while he was employed by ALG. He said the website was a front to get people in and then transmit them through ALG. 62

[75] On the email regarding ALG’s client “Mursell”, Mr Taylor said he was acting for the benefit of ALG. He did not explain why it was necessary or appropriate to do so using his figuredoutfinance.com email address.

[76] Mr Taylor’s Employment Agreement emphasises the importance of him working for ALG to the exclusion of any other business, trade or activity which might bring him into competition with ALG without ALG’s consent. It expressly limited his capacity to hold a financial interest or concern in a similar or competing business to ALG. Among other things, it required him to:

1. Attend the office for 37.5 hours per week during ALG’s standard hours of work (8.45am to 5.15pm, Monday to Friday), except where required to perform his role, duties and obligations at other locations as reasonably required or necessary to perform his duties, or at the direction of the Immediate Manager/Supervisor (clause 2.2.2);

2. Work for ALG to the exclusion of any other business, trade or activity which is or is likely to be competitive with ALG (clause 2.1.2);

3. Act in ALG’s best interests and protect and promote ALG’s reputation and not be employed by or in any way engaged by a competitor without ALG’s consent (clause 2.4.2(e)); and

4. Not be financially interested or concerned in a business similar to, or competing with ALG, whether solely or jointly with another person or entity (clause 8.3.2(f)). 63

[77] In my view these conditions were essential contractual conditions. They applied to conduct during the period of employment and safeguarded a legitimate business interest and core activity of ALG, which was earning commission through arranging finance for clients. A breach of the conditions put ALG at risk of reduced profitability by commissions being redirected away to other sources.

[78] It is not to the point that Figured Out Finance was a family company, or that it may have only been trading periodically, or that commissions were earned for work ‘after hours’ or only for the benefit of Mr Taylor.

[79] Once it uncovered the information about Figured Out, ALG put its concerns to Mr Taylor and he admitted the conduct alleged. That was sufficient to give ALG reasonable grounds to believe that Mr Taylor had engaged in serious misconduct for the purposes of the Code on the basis that he had deliberately engaged in behaviour that was inconsistent with the continuation of his contract of employment.

Conclusion

[80] ALG was a small business employer at the time of dismissal.

[81] Mr Taylor’s dismissal was consistent with the Code.

[82] The application is dismissed.

COMMISSIONER

Appearances:

R Taylor for the Applicant

C McPherson and A Tushuizen for the Respondent

Hearing details:

2018.

Melbourne:

January 18.

Printed by authority of the Commonwealth Government Printer

<PR601728>

 1   Exhibit 13

 2   Exhibit 16

 3   Exhibit 24

 4   Exhibit 16

 5   Exhibit 4, Audio file of hearing, 18 January 2018

 6   Exhibit 30

 7   Exhibit 5

 8   Exhibit 31

 9   Exhibit 17

 10   Exhibit 31

 11   Exhibit 17

 12   Exhibit 17

 13   Exhibit 31

 14   Exhibit 7

 15   Exhibit 31

 16   Exhibit 31, Exhibit 18

 17   Exhibit 18

 18   Exhibit 8

 19   Exhibit 31

 20   Exhibit 31

 21   Exhibit 18

 22   Email from Jeremy Taylor to Atlas, dated 19 September 2017, filed in the Commission on 22 January 2018

 23   Email from Jeremy Taylor to Atlas, dated 19 September 2017, filed in the Commission on 22 January 2018

 24   Exhibit 31, Exhibit 9

 25   Exhibit 31

 26   Exhibit 10

 27   Email from Atlas to Jeremey Taylor, dated 22 September 2017, filed in the Commission on 22 January 2018

 28   Exhibit 11

 29   Exhibit 31, Exhibit 34

 30   Exhibit 30, Exhibit 31, Exhibit 34

 31   Email from Atlas to Jeremey Taylor, dated 26 September 2017, filed in the Commission on 22 January 2018

 32   Exhibit 12, Exhibit 23.

 33   Fair Work Act 2009 (Cth), s.23

 34   Fair Work Act 2009 (Cth), s.385; s.388

 35   Form F3; Respondent’s Outline of argument: objections

 36   Audio recording of hearing, 18 January 2018

 37   Applicant’s submissions dated 25 January 2018

 38   Exhibit 16, Schedule for Jeremy Taylor

 39   [2015] EWCA Civ 46

 40   [1941] SC 203

 41   Wilson v B.A.R.B Trading T/A Gelatissimo Townsville [2016] FWC 3841

 42   [2013] FCAFC 3

 43   ACE Insurance Limited v Trifunovski [2013] FCAFC 3

 44   Te Raki and Te Raki v Peloton Sportz Pty Ltd T/A Carine and Cottesloe Cycles [2016] FWC 4215

 45   Exhibits 2, 24 and 31; audio recording of hearing, 18 January 2018

 46   Exhibits 24, 25, 26 and 34; audio recording of hearing,18 January 2018

 47   Fair Work Act 2009 (Cth), s.23; s.388

 48   Ryman v Thrash Pty Ltd t/as Wisharts Automotive Services [2015] FWCFB 5264. See also Grandbridge Limited v Wiburd [2017] FWCFB 6732, Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 and Pinawin v Domingo [2012] FWAFB 1359

 49   Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942

 50  McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 per Buchanan J

 51   North v Television Corporation Ltd (1976) 11 ALR 599 at [616] citing Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at [288]

 52   Audio recording of hearing, 18 January 2018

53 Exhibit 15

 54   Exhibit 6

 55   Exhibit 4

 56   Exhibit 30

 57   Audio recording of hearing, 18 January 2018

 58   Audio recording of hearing, 18 January 2018

 59   Exhibit 30

 60   Audio recording of hearing, 18 January 2018

 61   Audio recording of hearing, 18 January 2018

 62   Audio recording of hearing, 18 January 2018

 63   Exhibit 16