Fair Work Act 2009
s.394—Unfair dismissal

Yang Yan
v
Nu Skin Enterprises Australia, Inc
(U2021/11755)

Application for an unfair dismissal remedy

[1] Ms Yang Yan (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 16 December 2021 (the Application) in respect of her dismissal from employment with Nu Skin Enterprises Australia, Inc (the Respondent).

[2] A Conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 2 February 2022, and a Member Assisted Conciliation conducted on 20 April 2022 failed to resolve the matter. Directions for the filing of materials were issued on 21 April 2022. Those Directions were as follows:

1. Ms Yang Yan (the Applicant) is directed to file with the Fair Work Commission, and serve on Nu Skin Enterprises Australia, Inc (the Respondent) an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 4 May 2022.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 18 May 2022.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 25 May 2022.

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 18 May 2022.

[3] The parties complied with the Directions. In particular:

•  On 4 May 2022, the Applicant filed an Outline of Submissions, and a Witness Statement of the Applicant,

•  On 18 May 2022, the Respondent filed an Outline of Submissions, and a Witness Statement of Mr Maxime Giuabert, Sales Manager of the Respondent, and

•  On 25 May 2022, the Applicant filed a Reply Witness Statement of the Applicant.

[4] The matter was listed for Hearing on 6 June 2022. At the Hearing, the Applicant and Mr Giaubert were cross-examined. Where I have had to prefer the evidence of either the Applicant or Mr Giaubert, I have preferred the evidence of Mr Giaubert, who gave considered and responsive, albeit brief, evidence. The Applicant on the other hand, while also brief, appeared to carefully craft her answers to questions in a way she thought would most assist her case, regardless of their veracity.

Background Facts

[5] The Applicant commenced employment with the Respondent on 26 June 2019. It was apparent from the evidence and the case of the Respondent that the Applicant was a valued employee of the Respondent. There were approximately 34 employees of the Respondent.

[6] The Applicant’s employment contract provided:

“15. COMPANY POLICIES AND PROCEDURES

15.1 The Company may issue policies and procedures from time to time. Current policies and procedures are attached to this Contract. For the avoidance of doubt, the Company’s policies and procedures do not form part of this Contract and are lawful and reasonable directions of the Company. You agree to comply with any such directions. Policies and procedures may change from time to time at the sole discretion of the Company.”

[7] At 12:12pm on 11 August 2021, the Applicant received an email from the Respondent collecting COVID vaccination statuses with three options - (a) Vaccinated,(b) Planning to be vaccinated, (c) Not vaccinated. In the email it stated “There are no wrong answers. We just want to have an idea of where we currently stand as a team in case the plan is made effective by the government.”

[8] At 10:08pm on 11 August 2021, the Applicant received an email from the Respondent’s General Manager, John Hobby. The email was a follow up to the above email, with a clarification, and adding a fourth option - “I choose not to disclose”. In that email Mr Hobby emphasised his encouragement to all staff to go and receive the vaccine.

[9] At 11:58am on 12 August 2021, the Applicant replied to the emails from the Respondent stating, “I’m not planning to get the vaccine recently.” The Respondent replied “thanks for letting me know”, two minutes later.

[10] At 9:20am on 15 September 2021, the Applicant received an email from the Respondent again collecting COVID vaccination statuses with four options - (a) Vaccinated, (b) Planning to be vaccinated, (c) Not vaccinated, and (d) Prefer not to disclose.

[11] At 10:10am on 21 September 2021, the Applicant replied to the above email stating “I’m currently not vaccinated, but will consider if border open and travel required.” The Respondent replied “thanks for letting me know”, at 10:10am the same day.

[12] On 24 September 2021, Mr Giaubert emailed the Applicant asking about her intention to be vaccinated and the likeliness of vaccination becoming mandatory in the future.

[13] On 4 October 2021, the Respondent communicated with all employees recommending they get vaccinated, providing general advice about staying safe, and adopting the government guidelines. There was a follow up conversation on 18 October 2021, between the Applicant and Mr Giaubert asking about the Applicant’s first dose vaccination status.

[14] On 11 October 2021, the Respondent introduced a COVID Safety Plan (the COVID Plan) detailing guidelines set forth by NSW Health in dealing with the pandemic. The decision to introduce the COVID Safety Plan was based on the Work Health and Safety Act 2011 (Cth) (the WHS Act). The Respondent considered that it owed a duty of care to employees to take reasonable care to avoid conduct that it could reasonably foresee may cause injury or illness to those employees.

[15] On 19 October 2021, a Zoom meeting was conducted with the Respondent’s sales team to discuss the COVID Safety Plan addendum (the Addendum) to be introduced on 21 October 2021, with formal communication of the Addendum conducted by all managers with their teams on 21 October 2021. The Addendum was based on feedback from employees and after discussions with corporate leaders. The Addendum provided:

“Effective 01 December 2021, all Nu Skin employees whose duties include front-facing interaction with distributors/partners will be required to get fully vaccinated. This ensures our commitment to a safe work environment for our team and clients.

Likewise, other employees who have not been fully vaccinated by this date will be required to do a daily rapid COVID test prior to entering the company premises. Said test must be witnessed and documented by the immediate superior and/or HR and will be at the expense of the employee. The employee will only be allowed to enter the NS property after a negative test is received. Likewise, regardless of the test results and due to the low accuracy rates of current rapid testing solutions, a mask will still be required to be worn by the concerned employee when within the NS premises.”

[16] On 26 October 2021, another Zoom meeting was conducted between the Applicant, Mr Giaubert and the HR Manager, Shirley Crisostomo, regarding the COVID Plan and its implications for all employees of the Respondent.

[17] On 3 November 2021, there was a further conversation between the Applicant and Mr Giaubert, asking again about the Applicant’s intentions regarding vaccination. An exception was made to allow the Applicant to get her first dose by 19 November 2021, rather than to require her to be fully vaccinated by 1 December 2021.

[18] On Monday 15 November 2021, a further discussion occurred between the Applicant, Mr Giaubert, and Ms Crisostomo, to reinforce the deadline for the first dose vaccination being 19 November 2021. The Applicant was advised that failure to comply would result in her termination. The Applicant asked what would be included in her termination letter and Ms Crisostomo advised that the reason of non- compliance with company policy would be included.

[19] A further conversation occurred at the Applicant’s request on Tuesday 16 November 2021, between the Applicant and Ms Crisostomo. The Applicant asked for additional time to make a decision regarding vaccination. Ms Crisostomo asked if the Applicant had any medical condition that could be taken into consideration by management. The Applicant explained that she had asked for a medical exemption from her doctor but was not granted one. The Applicant’s request for additional time to decide was refused.

[20] On 19 November 2021, the Applicant sent an email to Ms Crisostomo and Mr Giaubert to officially declare that she would not be getting the first dose of COVID vaccination which was due on the same day.

[21] On 22 November 2021, a termination letter was sent to the Applicant by Mr Giaubert which was effective on 6 December 2021.

[22] On 23 November 2021, Ms Crisostomo requested employees show proof of their vaccination certificate by email. From this time until 6 December 2021, there was no communication from the Applicant and her termination was made effective on that date.

The Applicant’s Submission

[23] The Applicant succinctly summarized her objections to her dismissal in the submissions she filed, as follows:

“10. I have the following main concerns about Nu Skin’s new COVID vaccination mandatory policy:

(a) According to NSW Public Health (Covid-19 General) Order 2021, the beauty/ skincare industry is NOT the industry with COVID vaccination requirements by the NSW government.

(b) According to Safe Work Australia - WHS obligations, the employer has the obligation to consult with employees and any HSRs before any decisions are made. And the employee must be given a genuine opportunity to express their views and to raise, and to contribute to the decision-making process relating to the decision to introduce a vaccination policy.

(c) According to NSW Public Health (Covid-19 General) Order 2021- Division 6 (2.23 (2)), “An employer must require an employee who is not a fully vaccinated person to work at the employee’s place of residence unless it is not reasonably practicable to do so.”. And the order was in force until 15 December 2021.

11. According to the Account Manager’s job responsibilities and past experiences during the Greater Sydney lockdown, it is reasonably practicable to work from home for the Account Manager role to meet the job duties via office software, social media, conference calls etc.”

The Respondent’s Submission

[24] The Respondent noted that, with the ongoing COVID pandemic affecting New South Wales, it introduced the COVID Plan effective 11 October 2021, detailing guidelines set forth by NSW Health in dealing with the pandemic.

[25] After receiving feedback from employees and after discussions with corporate leaders on the situation, the Respondent created the Addendum which was cascaded on 21 October 2021. The Addendum, which was effective from 1 December 2021, required employees whose duties included front-facing interaction with distributors/partners to get fully vaccinated. This ensured the Company’s commitment to a safe work environment for their team and clients.

[26] The Respondent’s decision to introduce the COVID Plan and the Addendum was based on the WHS Act, which aims to protect people at workplaces from risk to their health or safety and to promote safe and healthy work environments. The Respondent owed a duty of care to employees to take reasonable care to avoid conduct that could reasonably foresee may cause injury or illness to employees. The Respondent submitted that they expected employees to comply with policies issued as a condition of their employment contracts.

[27] The Respondent noted that while the first direct communication with the Applicant happened on 24 September 2021, with Mr Giaubert asking about her intention to be vaccinated and the likeliness of vaccination becoming mandatory in the future, there was further communication on: 4, 18, 19, 21 and 26 October, and 3, 15, 16, 19 22 and 23 November 2021.

[28] The Respondent stated that prior to the introduction of the Covid Policy and the Addendum, a significant amount of communication had been issued by the Respondent through Mr Hobby, Mr Giaubert, and Ms Crisostomo regarding the recommendation for all employees to be vaccinated, especially for employees with regular contact with customers and stakeholders of the Respondent’s business.

[29] The Respondent noted that the Applicant never stated that she would be willing to be vaccinated, and she never provided any evidence to explain why she would not want to be vaccinated. The Respondent submitted that the Applicant’s position of Account Manager requires very regular contact with the leaders in the Respondent’s industry, attendance at events, travel, and face-to-face meetings as a team for different projects. Employees were asked to return to the office on a twice-a-week schedule beginning 20 October 2021. Given the Applicant’s vaccination status, she was allowed to work from home until her termination. That exception that was not offered to other employees.

[30] The Respondent submitted that ultimately, the Applicant was given over six weeks to decide and show an intent to receive her first vaccination. Initially the policy was a requirement to be fully vaccinated by 1 December 2021, but the Respondent made a concession allowing the Applicant to only indicate that she was willing to take the first dose of the vaccine. The Respondent submitted that, when faced with the fact that the Applicant had no intention to even start the vaccination process, the Respondent had no choice but to terminate the Applicant.

Consideration

Initial matters to be considered

[31] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the unfair dismissal application lodged by the Applicant (the Application). There is no dispute between the parties, and I am satisfied on the evidence, that:

(a) The Application was made within the period required in s.394(2) of the Act;

(b) The Applicant was a person protected from unfair dismissal;

(c) The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and

(d) The Applicant’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[32] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

[33] It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded” 1 and should not be “capricious, fanciful, spiteful or prejudiced.”2

[34] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 3 The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).4

Consideration as to whether there was a valid reason

[35] The Applicant was dismissed for failing to comply with the COVID Plan and Addendum that provided that employees whose duties include front-facing interaction with distributors/partners were required to get fully vaccinated.

[36] The Applicant’s challenge to the validity of the reason relied upon by the Respondent was on three grounds. They were:

(1) There was no Public Health Order requiring vaccination in the skincare industry;

(2) The Respondent failed to consult with employees before the introduction of the COVID Plan and the Addendum; and

(3) It was reasonably practicable for the Applicant to work from home.

(1) Absence of Public Health Order

[37] I do not consider the fact that the Respondent’s industry has not been the subject of NSW Public Health Orders mandating vaccinations has any weight in assessing the reasonableness of the COVID Plan and the Addendum. Whilst the existence of a government mandate requiring vaccination to enter a high-risk setting may weigh in favour of a complementary policy at that setting being reasonable, the converse is not true. The reasonableness of an employer’s policy proposing a vaccination requirement is to be objectively considered on its merits, and not be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting.

[38] I give significant weight to the fact that a vaccination policy such as that included in the Addendum intrudes on one’s right to bodily integrity. The practical effect of the COVID Plan and the Addendum is to place pressure on an employee to give up this fundamental right, given that non-compliance is accompanied by potential disciplinary consequences that include termination of employment. This weighs against the COVID Plan and the Addendum being assessed as reasonable.

[39] However, I also give weight to the fact that the COVID Plan and the Addendum have a logical and understandable basis in that they deal with the management of a real and present risk to health and safety. I give significant weight to this consideration given the collective rights and obligations the Respondent and employees have to the management of workplace health and safety (including the mitigation of risk). That is particularly so where:

(a) Persons employed by the Respondent physically interact with other employees and clients at the Respondent’s Experience Centre. The risk of virus transmission is real, not abstract or peripheral. Social distancing amongst employees and clients was difficult;

(b) While at the time of implementation of the COVID Plan and the Addendum there was the commencement of the prevalence of the Omicron variant of COVID-19 which was less severe in impacts than previous variants, it was highly transmissible and the rates of transmission were material; and

(c) Vaccination materially mitigates against the serious risk to health and safety posed by COVID-19.

[40] Considered overall, the factors in favour of the COVID Plan and the Addendum being assessed as reasonable outweigh the factor against such a conclusion, being that the policy places pressure on an employee to give up a fundamental right to bodily integrity. I do not conclude that the COVID Plan and the Addendum are unreasonable, or disproportionate as a workplace health and safety response to the risks presented by COVID 19. That being so, I conclude that a direction to comply with the Policy would be reasonable.

(2) Consultation

[41] The issue of consultation was the key basis of the Applicant’s challenge to her dismissal, though she never specified what she considered would have been adequate consultation. The Applicant simply stated that there had been no “formal” consultation, just information in emails from Human Resources.

[42] In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal, 5 the Full Bench stated:

“[98] It is uncontentious that the introduction of the Site Access Requirement and its implementation enlivened the consultation obligations in the WHS Act.  92 Sections 47 to 49 of the WHS Act are set out below:

47 Duty to consult workers

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48.

48 Nature of consultation 

(1) Consultation under this Division requires—

(a) that relevant information about the matter is shared with workers, and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter, and

(ii) to contribute to the decision-making process relating to the matter, and

(c) that the views of workers are taken into account by the person conducting the business or undertaking, and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

49 When consultation is required

Consultation under this Division is required in relation to the following health and safety matters—

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for—

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.

[99] The WHS Act is based on the work health and safety model laws, which have been enacted in all jurisdictions except Victoria and Western Australia. 

[100] The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum provides some limited guidance on the content of the duty to consult in s.48, as follows:

‘153. Subclause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.

154. Subclause 48(2) provides that consultation must involve any HSR that represents the workers.

155. Consulting with HSRs alone may be sufficient to meet the consultation duty, depending on the work health or safety issue in question.’ [Emphasis added]”

[43] After considering the propositions that could be drawn from cases about what constituted consultation, 6 the Full Bench observed:7

“[113] While we accept that the metes and bounds of the Respondent’s obligation to consult is delineated by the terms of the WHS Act, we consider that the propositions outlined above contain contextual material that is relevant to an understanding of ss.48 and 49 of the WHS Act and will have regard to them on that limited basis. Of course, we recognise that the content of any specific requirement to consult is determined by the context, including:

•  the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened,

•  the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and

•  whether the factual circumstances dictate a quick response.

[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’.”

[44] The Applicant pointed to no specific consultation requirement other than the WHS Act. The factual context in which the consultation requirement arose was a Company with 34 employees attempting to emerge from months of lockdown in October 2021, the very time that so many businesses in NSW were struggling to manage the re-emergence of their businesses.

[45] While, as I have observed at [38] above, a vaccination mandate such as that included in the Addendum intrudes on one’s right to bodily integrity, and the practical effect is to place pressure on an employee to give up this fundamental right, that mandate did not have immediate effect, and was the subject of voluminous further consultation with the Applicant both before, but particularly after the introduction of the COVID Plan and the Addendum. I accept the evidence of Mr Giaubert that:

(a) He met with the Applicant on 24 September 2021, and asked about her intention to be vaccinated and the likeliness of vaccination becoming mandatory in the future;

(b) He met with all Sales staff on 4 October 2021, and recommended vaccination and gave general advice about staying safe and adopting the government guidelines;

(c) From 4 October 2021, he had numerous conversations with the Applicant and the Sales team regarding vaccination and the COVID Plan; and

(d) He had a conversation with the Applicant on 3 November 2021, asking about her intention to at least have the first dose of vaccine. The Applicant was given an exemption to the COVID Plan and the Addendum, and allowed to get her first dose of a vaccine by 19 November 2021, rather than be fully vaccinated by 1 December, 2021.

[46] While the COVID Plan and the Addendum were rapidly introduced, I find the factual circumstances dictated a quick response. However, it is also important to observe that the policies introduced were not ‘set in stone’. Indeed, at least insofar as dates for compliance, there was acquiescence to the needs of the Applicant.

[47] The complaint of the Applicant regarding consultation was not, I consider, regarding the absence of consultation. Rather, her complaint was that notwithstanding the consultation that did occur, the COVID Plan and the Addendum continued to apply to her.

[48] I consider that, taking into account the factual circumstances and the need for a quick response, the conduct of the Respondent was consistent with its consultation obligations under the WHS Act.

(3) Work From Home

[49] The Applicant’s contract specifically provides that the location of her employment is the Respondent’s premises at Macquarie Park. There is no suggestion that her contract was varied by her apparently working from home during the period of lockdown. It cannot be seriously suggested that requiring the applicant to comply with the terms of her contract could be other than lawful. Employees were asked to return to the office on a twice a week schedule beginning 20 October 2021. Given the Applicant’s vaccination status, she was allowed to work from home until her termination.

[50] Further, I accept the Respondent’s evidence that the Applicant’s position of Account Manager required very regular contact with the leaders in the Respondent’s industry, attendance at events, travel, and face-to-face meeting as a team for different projects. It would have been impossible for the Applicant to adequately perform her duties while not attending the Respondent’s premises and/or other work locations where group contact would occur.

Conclusion on Valid Reason

[51] It follows from the matters set out above that I accept the Respondent had, at the time of the Applicant’s dismissal, a valid reason for such related to her capacity. The valid reason was that without compliance with the COVID Plan and the Addendum, the Applicant could not fulfil the inherent requirements of her job, to attend the Respondent’s premises at Macquarie Park.

Notification of reason (s 387(b))

[52] The Applicant was notified of the reasons for her dismissal in the termination letter of 22 November 2021.

Opportunity to respond (s 387(c))

[53] The Applicant was given opportunities to respond, and did in fact respond, to the reason for her dismissal in communications with the Respondent in the period leading up to her dismissal. Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to her capacity.

Unreasonable refusal to allow a support person (s 387(d))

[54] The Applicant did not seek to have a support person present in any conversations, and so this is not relevant to the present case.

Warnings of unsatisfactory performance (s 387(e))

[55] The Applicant was not dismissed for unsatisfactory performance. This criterion is not a relevant criterion to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[56] The Respondent is a relatively small enterprise. Nonetheless, it has a human resource management specialist and expertise. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.

Other relevant matters (s 387(h))

[57] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment.

Conclusion

[58] After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Y Yan, Applicant.
J Hobby of the Respondent.

Hearing details:

2022.
Sydney (by video):
June 6.

Printed by authority of the Commonwealth Government Printer

<PR742374>

 1   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 2   Ibid.

 3   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].

 4   Ibid.

 5   [2021] FWCFB 6059, at [98] to 100].

 6   [2021] FWCFB 6059, at [108]

 7   [2021] FWCFB 6059, at [113] and [114]