1
Fair Work Act 2009
s.604 - Appeal of decisions
Stephanie Muir Ridge
v
Mr Alex Yates
(C2024/8500)
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT BOYCE
DEPUTY PRESIDENT BUTLER
SYDNEY, 20 FEBRUARY 2025
Appeal against decision [2024] FWC 2973 of Deputy President Dean at Canberra on 11
November 2024 in matter number U2024/6365 – Application for an unfair dismissal remedy –
Whether the Deputy President erred in finding that the employee was dismissed – Whether the
Deputy President erred in being satisfied that the dismissal was harsh, unjust or unreasonable
– No arguable error in factual findings – Not in the public interest for the Full Bench to revisit
detailed factual findings made at first instance – No question of principle raised – Permission
to appeal refused.
Introduction and outcome
[1] Stephanie Muir Ridge conducts a business known as Intentional Care, which provides
NDIS and home care services. She employed Alex Yates in her business, most recently as
Director of Operations. An issue arose between them in relation to Mr Yates’ pay. Mr Yates’
pay was increased and there is a dispute as to whether Ms Ridge had agreed to the increase and
whether she was aware of Mr Yates’ new rate of pay. Ms Ridge and Mr Yates spoke by
telephone on 14 May. After the call Mr Yates sent a text message. Ms Ridge says Mr Yates
resigned in the call and the text message further communicated the resignation. Mr Yates says
otherwise.
[2] On 4 June 2024, Mr Yates applied to the Fair Work Commission (the Commission) for
an unfair dismissal remedy, under s 394 of the Fair Work Act 2009 (Cth) (the Act). Ms Ridge
opposed the application on the basis that Mr Yates had not been dismissed and, if he had been
dismissed, the dismissal was not harsh, unjust or unreasonable. Deputy President Dean heard
the application on 10 October 2024. The Deputy President handed down her decision on 11
November 2024. The Deputy President found that Mr Yates had been dismissed and that the
dismissal was harsh, unjust, and unreasonable. She decided that the parties would have a further
opportunity to file materials in relation to the question of remedy.1 Further proceedings in
relation to remedy were stood over pending determination of this appeal.
[3] Ms Ridge filed a notice of appeal on 1 December 2024. She seeks permission to appeal,
and to appeal, the decision of the Deputy President under s 604(1) of the Act. The grounds she
[2025] FWCFB 42
REASONS FOR DECISION
AUSTRALIA FairWork Commission
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[2025] FWCFB 42
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advances allege that the Deputy President erred by finding Mr Yates had been dismissed, and
erred by finding that the dismissal was harsh, unjust and unreasonable.
[4] A hearing was held before the Full Bench on 10 February 2025. At the conclusion of
the hearing, the Full Bench announced its decision to refuse permission to appeal. An order to
that effect was published on the same day. The Full Bench advised that reasons for that decision
would be published in due course. These are the reasons for our decision.
Factual background
[5] Ms Ridge employed Mr Yates from 14 March 2023. Shortly after he was employed, he
was promoted to Director of Operations.2 On Mr Yates’ case, the parties agreed that they would
become business partners and met with an accountant in September 2023 to discuss the best
way to structure the business. There were discussions about forming a partnership, and about
forming a company. Mr Yates said the business did not have enough money so he would work
at a lower pay rate to allow the business to save the necessary funds.3
[6] In cross-examination, Ms Ridge said she referred to Mr Yates as her “business partner.”4
However, Ms Ridge’s position was that, although there had been some discussions around her
partnering with Mr Yates, their working relationship had deteriorated and it had become clear
to her that this would not be happening. The parties proceeded on the basis that, when their
relationship ended, it remained one of employer and employee.
[7] On 25 April 2024, Ms Ridge told Mr Yates she intended to increase her own weekly
pay. The parties met to discuss this the following day.5 Mr Yates’ evidence was that during the
meeting on 26 April 2024, he told Ms Ridge that he did not believe that she was serious about
their partnership given that they had been trying to save the money to restructure and set up a
company for over a year, and that he believed he had already paid his way into the partnership.
As a result, he wanted his pay to be equal to hers.6 He says she replied with:7
“I agree, you’ve paid your way, that’s fine, put your pay up.”
[8] On 3 May 2024, Mr Yates emailed the business’s bookkeeper to say that his last pay
had been lower than it should have been. He set out the amount he said he ought to have been
paid. He sent a further email to the bookkeeper the same day stating:8
“Stephanie is aware of the increase in my pay rate. After she increased her weekly draw to $2500
we agreed I would get the same. It’s been this way for a couple of pays now, I’m guessing
Mariana didn’t update the template?”
[9] “Mariana” was Mr Yates’ former partner, and the business’s previous bookkeeper.9 Mr
Yates says he also spoke to Ms Ridge about his pay around this time.10
[10] On 13 May 2024, Mr Yates considered his pay had again been short, and that the
shortfall in the previous pay had not been rectified. He says that he called the bookkeeper, who
told him to speak directly with Ms Ridge.11 He then called Ms Ridge.
[11] The telephone conversation which took place on 14 May 2024 is the call in which Ms
Ridge says Mr Yates resigned. The Deputy President’s decision set out Mr Yates’ account of
the call as follows:12
[2025] FWCFB 42
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“[17] … He then called the Respondent and asked why his pay was short when it was meant to
be $2500 per week. He gave evidence that the Respondent denied any agreement about
increasing his pay. He said he was shocked and accused her of lying.
[18] He told the Respondent that she had agreed to equal pay and that he wouldn’t continue to
work for her for less than she was paying herself, as he “had already paid my own way and was
doing the vast majority of the work”. He said she would not be able to run the business on her
own, and he couldn’t believe that she would lie about their agreement. He also said it was likely
she would lose staff members and she would struggle to run the business if he left. At that point,
the Respondent ended the call by hanging up on the Applicant.”
[12] The Deputy President also set out Ms Ridge’s account of the call as follows:
“[27] The Respondent gave evidence that she spoke with the Applicant on 14 May about what
she said was a discrepancy in his pay, that being that the Applicant had increased his pay in
excess of the $55 per hour that had been agreed. She said the Applicant: “was initially taken
aback”, and then went on to state:
“a. He ran the Company and not me;
b. He shouldn’t have to justify being paid more;
c. I was financially irresponsible;
d. I would [sic] be able to do it (run the company) without him”.
[28] She gave evidence that the Applicant then said: “I quit! I’m going! I’m going to take the
staff with me. They will come with me. You won’t be able to do it without me”.
[29] The Respondent gave evidence that while the Applicant was initially taken aback, his voice
changed over the course of the conversation which caused her concern and fear.”
[13] Just after the phone call ended, Mr Yates sent Ms Ridge a text message in the following
terms:13
“Will be making a report to fair work and contacting a lawyer today. There’s a reason staff talk
to me, not you. Good luck doing it by yourself.”
[14] Around an hour later, Ms Ridge posted in the staff WhatsApp group that Mr Yates had
resigned.14 Mr Yates told various staff that this was not the case and that he had not resigned.15
He continued to perform work in the business. On 16 May 2024, Ms Ridge emailed Mr Yates
instructing him not to talk to staff or clients, and not to access any work accounts. 16
[15] On 20 May 2024, Ms Ridge sent an email to Mr Yates asking him to “[p]lease provide
your written resignation”. On 21 May 2024, Mr Yates replied saying:
“I have not resigned from my position with intentional care,
Nor do I have any or do I have any intention of doing so.”
[16] Further communications occurred between the parties in which, among other things, Mr
Yates continued to pursue what he regarded as his “missing pay”. On 24 May 2024, Mr Yates
sent an email to Ms Ridge asserting:
“I would also like you to explain the current situation. I’m currently fit and willing to work, but
you’ve instructed me not to access devices and accounts, and not to communicate with staff or
clients, which makes my job somewhat impossible.
[2025] FWCFB 42
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When will these restrictions be lifted so that I can resume work?
I would like to note that I object to the fact that you have falsely told staff:
- (initially) that I was on mental health leave
- that I quit
- that my father is of ill health.
Just to list a few.”
[17] As has been mentioned, Mr Yates subsequently lodged an application under s 394 of the
Act on 4 June 2024.
Decision of the Deputy President
[18] In considering whether Mr Yates had been dismissed within the meaning of that term as
defined in s 386(1) of the Act, the Deputy President referred to Bupa Aged Care Australia Pty
Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941; (2017) 217 IR 245 and
Gunther v B & C Melouney (t/as Easts Riverside Holiday Park) [2012] FWA 2473. After having
set out the evidence of the parties, the Deputy President considered whether Mr Yates had
resigned. She found that he had not, and gave reasons for that finding, as follows:17
“I am satisfied on the evidence that the Applicant did not resign for the following reasons:
To the extent there is a dispute about what was said in the phone conversation between the
parties on 14 May 2024, I prefer the evidence of the Applicant. His actions after this
conversation do not support a finding that he resigned at that time.
The text message relied on by the Respondent is ambiguous at best and is explainable for the
reasons given by the Applicant in his evidence.
The Applicant continued to perform work between 14 and 16 May until he was directed by the
Respondent to cease talking to staff or clients and not to access any work accounts. He
would not have continued to work had he resigned.
I am not satisfied that the Applicant unilaterally changed his pay rate above that which had been
agreed. I am satisfied that the agreement between the parties, consistent with their intention
to be business partners, was that the Applicant and the Respondent would be paid the same
amount. I am satisfied that the Applicant would not have resigned given his firm belief as
to the agreement between him and the Respondent about becoming a partner in the business.
On 20 May the Respondent sought to have the Applicant confirm in writing that he resigned.
The Applicant replied the following day in writing confirming that he had not resigned and
had no intention of doing so. There is no evidence that the Respondent sought to clarify this
position with the Applicant or reply asserting the Applicant had resigned on 14 May. This
supports a finding that the Applicant did not resign.
Finally, I accept the Applicant had put significant work into building the business and entering
into a partnership with the Respondent, and would not have simply walked away from this
in circumstances where he felt he had already “paid his way” into the partnership.”
[19] The Deputy President indicated that she was satisfied that this was a termination at the
initiative of Ms Ridge, and that Mr Yates was dismissed for the purposes of the Act.
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[20] Having dealt with the objection that Mr Yates had not been dismissed for the purposes
of s 385(a) and being satisfied that s 385(c) and (d) did not apply, the Deputy President turned
to consider whether the dismissal was harsh, unjust, or unreasonable for the purposes of s
385(b). The Deputy President dealt with each of the matters set out in s 387 of the Act that the
Commission is required to take into account.
[21] As to the question of whether there had been a valid reason for termination, the Deputy
President considered Ms Ridge’s assertion that Mr Yates had unilaterally and without
permission increased his pay rate, and that this constituted serious misconduct warranting
dismissal.18 The Deputy President made findings as follows:19
“[49] I am not satisfied that this occurred. I find that the Applicant and the Respondent had
agreed that the Applicant would be paid the same amount as the Respondent. It is clear in the
evidence that the Respondent approved payments made to all employees within Xero, the
business’ accounting software, including payments made to the Applicant. She clearly approved
the payments made to the Applicant that she now disputes. I do not accept the Applicant used
his relationship with the former bookkeeper (his former partner) to, in essence, misappropriate
funds or engage in fraud. The Applicant’s actions in contacting both the new bookkeeper and
the Respondent to dispute his pay are not the actions of someone who has misappropriated funds.
He was asserting what he genuinely believed were his pay entitlements.”
[22] The Deputy President also considered and rejected Ms Ridge’s claim that Mr Yates’
post-termination conduct gave rise to a valid reason for termination. The Deputy President
concluded:
“[51] I accept the Applicant’s comments about the Respondent were not flattering. The
comments included that her staff did not like her or respect her, that she has lied, that clients
were unhappy with her, and that she was using business funds to pay for her wedding. Clearly,
he was upset about what had occurred. As he described, he felt betrayed by the Respondent and
said that never in his wildest dreams did he imagine she would be so dishonest. I am not satisfied,
though, that his post-employment comments were serious enough to ground a valid reason for
his dismissal in these circumstances.”
[23] Having dealt with the question of whether there had been a valid reason for termination
the Deputy President went on to consider the other factors in s 387. She then concluded that she
was satisfied that Mr Yates had proven that his dismissal was harsh, unjust, and unreasonable,
and therefore unfair.20 The Deputy President indicated she would provide a further opportunity
for the parties to file materials in relation to the question of remedy.
Grounds of Appeal
[24] The notice of appeal contains a discursive critique of the decision of the Deputy
President, rather than the identification of discrete grounds of appeal. Having regard to the
content of the notice of appeal and Ms Ridge’s subsequent written submissions, it is appropriate
to summarise the grounds of appeal as involving assertions that:
1. the Deputy President erred by finding that Mr Yates was dismissed;
2. the Deputy President erred by finding there was no valid reason for termination,
in that Ms Ridge says:
[2025] FWCFB 42
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3. she had not agreed that Mr Yates’ pay would be equal to hers; and
4. Mr Yates’ post-termination conduct, involving making derogatory
comments, gave rise to a valid reason for dismissal.
Submissions of the parties
Appellant
[25] Ms Ridge’s notice of appeal asserts that it would be in the public interest for the
Commission to grant permission to appeal on the basis that decisions should be based on the
truth. In her submissions, she further argued that it was in the public interest to grant permission
to appeal because the decision undermined small businesses’ rights to dismiss employees for
valid reasons, raised important questions about the balance between employee protections and
employer rights particularly in the context of small business operations, and risked setting a
precedent encouraging unsubstantiated allegations to overshadow legitimate reasons for
dismissal.
[26] As to the decision that Mr Yates had been dismissed, Ms Ridge submitted that the facts
clearly showed that he had resigned, and the Deputy President’s decision was incorrect. She
said the Deputy President should have accepted her evidence, rather than Mr Yates’ evidence,
in relation to the content of the telephone conversation between them on 14 May 2024.
[27] As to the issue of whether there had been a valid reason for dismissal in connection with
Mr Yates’ pay, Ms Ridge submitted she had not been fully aware in relation to Mr Yates’ pay
rates, and that she and Mr Yates had not agreed to the rate of pay he claimed. She says he had
unilaterally increased his pay rate, and that the Deputy President was wrong to accept his
evidence and should have accepted her evidence instead.
[28] As to the issue of Mr Yates making derogatory comments about her or her business, Ms
Ridge confirmed in her oral submissions that this allegation related to communications which
had taken place after the employment relationship had ended. Ms Ridge submitted the Deputy
President had misapplied Fiona Stewart v Sea Change Conveyancing Pty Ltd [2012] FWA
1896, a decision of single member of the Commission in which an employee’s inappropriate
conduct towards the employer, and poor work performance, had established a valid reason for
termination.21
[29] Ms Ridge also submitted that she had acted in accordance with the Small Business Fair
Dismissal Code.
Respondent
[30] Mr Yates submitted that Ms Ridge had not identified any errors on the Deputy
President’s part, and that the appeal was grounded upon dissatisfaction with the Deputy
President’s findings. He argued Ms Ridge had not identified any, or any significant, errors of
fact. He argued there was no public interest in the appeal.
Consideration
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[31] An appeal under s 604(1) of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the primary
decision maker.22 There is no right to appeal, and an appeal may only be made with the
permission of the Commission.
[32] As this is an appeal from a decision made under s 394 of the Fair Work Act, it is a
decision to which s 400 applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a question
of fact, be made on the ground that the decision involved a significant error of fact.
[33] Section 400(1) dictates that permission to appeal may only be granted if the Commission
is satisfied that it is in the public interest to do so. The public interest test is stringent.23 A would-
be appellant will generally need to show there is an arguable case of appealable error.24 Even
where an arguable case is demonstrated, that is not necessarily sufficient to warrant a grant of
permission to appeal.25 The statutory context may be relevant in deciding whether to exercise
the discretion to grant permission to appeal, without fettering that decision.26 In matters where
s 400 applies, it will “commonly not be in the public interest to grant permission to appeal
where the grounds of appeal, in substance, seek to relitigate the factual findings made at first
instance,” and often it will not be in the public interest for a Full Bench to analyse “the primary
factual material simply because an appellant alleges that different conclusions should have been
drawn from the evidence.”27
[34] In substance, Ms Ridge disputes the factual findings made by the Deputy President at
first instance. Those findings were made by the Deputy President with the benefit of having
seen and heard the witnesses give their evidence. The key issues which arose as to whether Mr
Yates was dismissed or had resigned and whether there had been an agreement to increase Mr
Yates’ rate of pay were the subject of a direct clash between the evidence given by Ms Ridge
and Mr Yates. Put simply, Ms Ridge and Mr Yates gave inconsistent versions of events.
Although there were some contextual matters which assisted in resolving the clash in the
evidence, the Deputy President ultimately had to determine whether she accepted Ms Ridge’s
evidence or that of Mr Yates.
[35] Subject to the question of permission to appeal, a Full Bench is required to conduct a
real review of the evidence at first instance and, if it finds that an erroneous factual finding has
been made, should “not shrink from giving effect to” its own conclusion.28 However, findings
of fact at first instance will be treated with considerable deference where they involve findings
which are likely to have been affected by impressions about the credibility of witnesses formed
after seeing and hearing their evidence.29 In those circumstances, an appellate bench will
ordinarily not interfere with the findings unless they are demonstrated to be wrong by reference
to “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or
“contrary to compelling inferences”.30
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[36] We do not believe Ms Ridge has raised an arguable case of appealable error with respect
to the key factual findings made by the Deputy President. For the reasons we briefly set out
below, no basis was established upon which the Full Bench could disturb the findings made by
the Deputy President. In any event, we do not consider that it is in the public interest for the
Full Bench to revisit the factual findings made by the Deputy President on appeal. No issue of
principle or general application was raised by Ms Ridge’s appeal which should have attracted
a grant of permission to appeal.
Whether Mr Yates was dismissed
[37] The question of whether Mr Yates was dismissed or had resigned involved a
consideration of the competing accounts of the telephone call on 14 May 2024 given by Ms
Ridge and Mr Yates, and how the subsequent text message should be understood in light of that
telephone call. In relation to the telephone conversation, the Deputy President preferred the
evidence of Mr Yates. No arguable basis has been established upon which the Full Bench could
conclude that the Deputy President was wrong to do so. The Deputy President relied, no doubt,
on her impression of the witnesses giving their evidence and, in addition, referred to the
subsequent conduct of Mr Yates and Ms Ridge which supported the conclusion that Mr Yates
did not resign in the course of the telephone call. The findings were made in an orthodox manner
and there is no basis upon which the Full Bench could reach a different view on appeal.
[38] We also do not believe there is any arguable basis to find error in the Deputy President’s
assessment that the text message sent by Mr Yates following the telephone conversation on 14
May 2024 was “ambiguous at best”. It is a necessary incident of the employment relationship
that the other party must be notified in clear and unambiguous terms if a right to bring the
contract to an end is being exercised.31 Consistently with that principles, an employee will not
be found to have resigned unless the employee has clearly communicated an intention to so do
to the employer.32 The text message sent by Mr Yates did not contain unambiguous words
conveying an intention to resign and, in our opinion, the Deputy President was correct to find
that the text message did not constitute a resignation by Mr Yates.
Whether there was a valid reason for dismissal
[39] Ms Ridge alleged there was a valid reason for dismissal because Mr Yates had increased
his rate of pay unilaterally and without permission. The Deputy President found that this did
not occur. Again, the issue turned on a direct conflict in the evidence given by Ms Ridge and
Mr Yates. Having heard the evidence given by Ms Ridge and Mr Yates and having considered
the other conduct of the parties, the Deputy President found that the parties had agreed that Mr
Yates would be paid the same amount as Ms Ridge, and that Mr Yates had been asserting what
he genuinely believed were his pay entitlements. Ms Ridge simply asserted that the Deputy
President should have reached a different conclusion. In circumstances in which the Deputy
President had the advantage of seeing the witnesses give their evidence, there is no basis to
overturn that finding.
[40] Ms Ridge also relied on what she described as derogatory comments made about her by
Mr Yates as constituting a valid reason for dismissal. The Deputy President found that, although
the post-employment comments made by Mr Yates were “not flattering”, they were not
sufficiently serious to ground a valid reason for dismissal in the circumstances.33 There was,
with respect, a more fundamental problem with Ms Ridge’s reliance on the comments made by
[2025] FWCFB 42
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Mr Yates in relation to her and the business. Ms Ridge complains about comments made by Mr
Yates after the employment ended. Post-employment conduct could not provide a valid reason
for dismissal. Although it is open to an employer to rely on matters as constituting a valid reason
which were not known to the employer or relied upon when the employer decided to terminate
the employment, those matters must have been in existence at the time of dismissal. In Lane v
Arrowcrest Group Pty Ltd (1990) 27 FCR 427, Von Doussa J explained:34
“…it is still open to an employer to justify a dismissal by reference to facts not known to the
employer at the time of the dismissal, but discovered subsequently, so long as those facts
concern circumstances that were in existence when the decision was made. Whether the decision
can be so justified will depend on all the circumstances.”
[41] Similarly, having referred to the decision of the High Court in Byrne v Australian
Airlines (1995) 185 CLR 410 and various other authorities, the Full Bench explained in
Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (with respect to the equivalent
provisions in the Workplace Relations Act 1996 (Cth)):35
“On the basis of the foregoing we are of the view that in determining a s 170CE(1)(a) application
the Commission is bound to consider whether, on the evidence in the proceedings before it, the
termination was ‘‘harsh, unjust or unreasonable’’, provided that the evidence concerns
circumstances in existence when the decision to terminate the employment was made.”
[42] At most, post-employment conduct might be relevant to an assessment as to whether
reinstatement should be ordered and, perhaps, other remedies. That is a matter still to be
considered by the Deputy President and it is not appropriate for the Full Bench to say anything
further about it. There is no reason to grant permission to appeal with respect to the allegedly
derogatory conduct of Mr Yates after the employment came to an end.
The Small Business Fair Dismissal Code
[43] In her written submissions on appeal, Ms Ridge referred to the Small Business Fair
Dismissal Code. This issue is not raised in the notice of appeal, and it does not appear that it
was raised before the Deputy President. The Deputy President found that s 385(c) of the Act
did not apply.36 Ms Ridge has not provided any basis to demonstrate an arguable case that that
finding was made in error.
Conclusion
[44] Ms Ridge has not demonstrated an arguable case of appealable error. She primarily
argues the Deputy President should have drawn different conclusions from the evidence and
seeks to relitigate factual issues. Further, the appeal does not raise any issue of significance or
general application. Contrary to Ms Ridge’s submissions, the decision did not undermine the
basis upon which employers can dismiss employees, nor does it raise questions about the
balance between employee protections and employer rights or allow unsubstantiated allegations
to overshadow legitimate reasons. The decision turned on findings of fact specific to the matter,
which the Deputy President made after seeing and hearing the evidence being given.
[45] Accordingly, the Full Bench ordered that permission to appeal was refused.
[2025] FWCFB 42
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VICE PRESIDENT
Appearances:
S Ridge appeared for herself.
A Yates appeared for himself.
Hearing details:
Sydney (by video):
10 February 2024
Printed by authority of the Commonwealth Government Printer
PR784588
1 Yates v Stephanie Muir Ridge [2024] FWC 2973.
2 Ibid, [6].
3 Ibid, [10]-[11].
4 Ibid, [10].
5 Ibid, [12].
6 Ibid, [14].
7 Ibid, [14].
8 Ibid, [15].
9 Ibid, [15].
10 Ibid, [16].
11 Ibid, [17].
12 Ibid, [17]-[18].
13 Ibid, [7].
14 Ibid, [8].
15 Ibid, [22]-[23].
16 Ibid, [24].
17 Ibid, [38].
18 Ibid, [48].
19 Ibid, [49].
THE FAIR WORK CO NOISSIN THE SEAL
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[2025] FWCFB 42
11
20 Ibid, [68].
21 Ibid, [58].
22 Opal Packaging Australia Pty Ltd v Pece Calovski [2025] FWCFB 16 at [72]; applying Coal and Allied Operations Ltd v
AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ).
23 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [43] (Buchanan J).
24 Opal Packaging Australia Pty Ltd v Pece Calovski [2025] FWCFB 16 at [72]; applying Wan v Australian Industrial
Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].
25 Opal Packaging Australia Pty Ltd v Pece Calovski [2025] FWCFB 16 at [72]; applying GlaxoSmithKline Australia Pty Ltd
v Makin [2010] FWAFB 5343, at [26]-[27]; (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt
Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
26 Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [40].
27 Ibid.
28 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ).
29 See, for example, Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd [2025] FCAFC 12 at [53] (Nicholas, Jackson and
Rofe JJ).
30 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter
Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee
[2019] HCA 28; (2019) 266 CLR 129 at [55] (Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ).
31 Geys v Societe Generale, London Branch [2013] 1 AC 523 at [57]-[61] (Baroness Hale).
32 See, for example, Moore v LE Stewart Investments Pty Ltd t/as Southern Highlands Taxi Service [2010] NSWIRComm 50
at [81] (Backman J).
33 Yates v Stephanie Muir Ridge [2024] FWC 2973 at [51].
34 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 (Von Doussa J).
35 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.
36 Yates v Stephanie Muir Ridge [2024] FWC 2973 at [41].
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https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb364.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2973.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2973.pdf
