DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic
v
Mei Chan
(C2019/2709)

Appeal against decision [2019] FWC 2315 of Senior Deputy President Hamberger at Sydney on 8 April 2019 in matter number U2018/10383; whether particular persons engaged by the Appellant were employees; permission to appeal granted; appeal upheld; decision quashed; application remitted for rehearing.

Introduction and background

[1] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic (the Appellant) has applied for permission to appeal and has appealed against a decision 1 made by Senior Deputy President Hamberger on 8 April 2019 (the Decision), in which the Senior Deputy President determined that Ms Mei Chan (the Respondent) was unfairly dismissed and determined that compensation of $40,000 plus superannuation should be paid to the Respondent by the Appellant.

[2] The background to the proceedings may be shortly stated. The Appellant conducts a dental practice with two clinics at Hurstville and Hornsby in NSW. The Respondent commenced working for the Appellant in July 2013 as a Dental Assistant in the Hurstville Clinic. In 2014 the Respondent was promoted to the position of Practice Manager in the Hornsby Clinic. The Respondent was dismissed on 21 September 2018 arising from the Appellant’s concerns over the Respondent’s performance and conduct; specifically due to claimed discrepancies in the cash accounts for which the Respondent was responsible, her taking of an extended period of unauthorised leave and her alleged unauthorised withdrawal of cash from the Appellant’s cash account.

[3] We turn firstly to the Decision which is the subject of the appeal.

The Decision

[4] In its initial Form F3 response to the unfair dismissal application the Appellant objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code (the Code). The matter was set down for hearing before the Senior Deputy President in respect of both the Appellant’s jurisdictional objection and the merits of the substantive application.

[5] As required by s.396 of the Fair Work Act 2009 (the Act), the Senior Deputy President in the Decision turned to the initial matters to be decided before considering the merits. 2 In considering the Appellant’s jurisdictional objection, the Senior Deputy President was required to establish the number of employees of the Appellant employed at the time of the Respondent’s dismissal. He ultimately found that the Appellant “…did not have fewer than 15 employees at the relevant time”3 from which conclusion it followed that the Respondent was not a small business employer and that the Code did not apply (s.396(c)).4

[6] Critical to the Senior Deputy President’s conclusion was his finding as to the employment status of 7 dentists engaged by the Appellant. The Senior Deputy President found that these dentists were employees rather than contractors as contended by the Appellant. We return later to this aspect of the Senior Deputy President’s decision.

[7] Having determined that the Code did not apply, the Senior Deputy President considered whether the dismissal was “harsh, unjust or unreasonable”; and for that purpose gave consideration to the matters set out at s.387(a)-(h) of the Act. As to whether there was a valid reason for dismissal the Senior Deputy President concluded:

“[52] The evidence in this case is far from clear. This was compounded by the primitive accounting practices used by the respondent. However, I generally accept the applicant’s version of events, especially as it was generally consistent with the written records, such as they are. In particular, I accept that the applicant had an understanding with the respondent that she would receive both commission and a performance bonus, and that these would continue to be paid while she was on maternity leave. The applicant’s practice, accepted and condoned by the respondent over a long period of time, was that she would take this money herself from the respondent’s cash receipts. There was nothing hidden about this. Both the commission and the bonus were included in the monthly cash reports that the applicant gave to the Dr Zhang and Mr Guan. They were also included in the report that the applicant prepared on 11 June 2018.

[53] I do not consider there is sufficient evidence to sustain any of the allegations the respondent made against the applicant. In particular, I am not persuaded that there are any significant, unexplained discrepancies in the cash accounts the applicant had prepared.

[54] Moreover, I accept on the balance of probabilities that Dr Zhang had verbally agreed to pay the applicant a $200 performance bonus for every $12,000 of revenue received per week.

[55] There is no basis for accepting the respondent’s contention that the applicant took unauthorised leave during the period from May 2017 to February 2018. She appears to have kept Dr Zhang informed when she needed to have time off because of complications with her pregnancy. There is no evidence that she failed to meet any requirements for ‘prior written approval’ of that leave.

[56] Finally, I am satisfied that any money the applicant took from the respondent’s cash receipts was money that she was authorised to receive.

[57] Given these findings, I am satisfied that there was no valid reason for the applicant’s dismissal.” 5

[8] The Senior Deputy President considered the other matters he was required to take into account under s.387 of the Act and relevantly stated:

“[58] I am satisfied that the applicant was broadly notified of the allegations made against her, and that she was given an opportunity to respond. There is no evidence that the applicant was prevented from having a support person present at any relevant meetings.

[59] The process taken by the respondent in effecting the dismissal was broadly consistent with its relatively small size and lack of access to dedicated human resource management specialists or expertise.

[60] I do not consider there are any other matters I should take into account.” 6

[9] The Senior Deputy President concluded that:

“Having regard to all these factors, I am satisfied that the dismissal was unjust and unreasonable.” 7

[10] The Senior Deputy President next dealt with the question of remedy and concluded that reinstatement was inappropriate, noting that the Respondent had not sought reinstatement. 8 The Senior Deputy President then turned to the issue of compensation and after consideration of the matters set out in s.392(2)(a)–(g) of the Act ordered that the Appellant pay compensation in the amount of $40,000 plus superannuation.9

Grounds of appeal and submissions

[11] We discern from the Appellant’s Notice of Appeal the following three grounds of appeal:

1. The Senior Deputy President erred in his conclusion that the dentists engaged by the Appellant were employees and that as a consequence the Appellant was not a small business employer.

2. By wrongly concluding that the Appellant was not a small business employer the Senior Deputy President consequently fell into error by failing to consider whether the dismissal of the Respondent was consistent with the Code.

3. The Senior Deputy President wrongly concluded that the Respondent had complied with the maternity leave notice requirements under the Act (s.74), that being the requirement to provide prior written notice in respect of her intention to take maternity leave.

[12] It is necessary only that we deal with the first ground.

[13] By the first ground, the Appellant submits that the contracts entered into between the Appellant and dentists show on their face, a contractor relationship. Consequently, according to the Appellant, the dentists should not have been counted as employees for the purposes of establishing whether the Appellant employed 15 employees at the relevant time.

[14] Before the Senior Deputy President the Appellant provided relevant extracts of what are said to be template contracts. Before us, the Appellant contended that the Senior Deputy President did not raise any concerns regarding the Appellant’s evidence as to the contractual status of the dentists during cross-examination of the Appellant’s witnesses. The Appellant contends that it was deprived of an opportunity to adduce further evidence to address any concerns the Senior Deputy President may have held regarding the contractual status of the dentists and as a consequence was denied procedural fairness.

[15] The Respondent contends the Appellant’s Notice of Appeal and submissions in respect of the first and second grounds of appeal do not engage with, address or challenge any of the crucial findings of the Senior Deputy President in which he found that there was insufficient evidence to sustain any of the allegations made against the Respondent. Rather, the Respondent submits that the Appellant now complains of unfavourable or unavailable conclusions that were not determinative of the unfair dismissal application.

[16] The Respondent further submits that the Appellant put on the sparsest of evidence in the initial proceedings as to the nature of the contractual status of the dentists and failed to address matters such as delegation, payment arrangements, commercial risk, control and independence, the degree of input, influence or negotiation which took place in the formation of each contract and whether the dentists were effectively running their own business. The Respondent contends that even if the dentists were independent contractors the outcome would not have changed given that the test for summary dismissal under the Code could not be met by the Appellant in the case of fraud and/or theft having regard to the Senior Deputy President’s findings in paragraphs [19], [52]-[53] and [56] of the Decision.

Consideration

Relevant statutory provisions

[17] Central to the resolution of the appeal is the Senior Deputy President’s finding that the Appellant was not a small business employer for the purpose of consideration of compliance with the Code.

[18] Section 385 of the Act sets out when a person has been unfairly dismissed as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

(Emphasis added)

[19] Self-evidently, the requirements of this section depend upon the Commission itself being satisfied of the state of affairs to which reference is made in s.385. 10

[20] The circumstances in which a person’s dismissal is ‘consistent with the Small Business Fair Dismissal Code’ is set out in s.388 as follows:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.” (Emphasis added)

[21] The Code declared by the Minister pursuant to s.388(1) is as follows:

“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.”

[22] Whether an employer is a small business employer is determined by reference to s.23 of the Act which provides:

“Meaning of small business employer

(1)  A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2)  For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)  subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b)  a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3)  For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4)  To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a)  the employee who is being dismissed or whose employment is being terminated; and

(b)  any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[23] Thus, for the purposes of determining whether the Respondent was unfairly dismissed, the Senior Deputy President was required to consider the Code by first determining whether it applied. This depended on whether the Appellant was a small business employer at the time of the Respondent’s dismissal.

[24] There is little doubt that the Appellant engaged more than 15 persons in its dental practices at the time of dismissal. However, the controversy that required determination was whether a number of those persons were independent contractors or employees, as only employees are to be counted in assessing whether the Appellant was at the relevant time a small business employer.

Permission to appeal

[25] As mentioned earlier, the Appellant has applied for permission to appeal, and has appealed, the Decision.

[26] An appeal under s.604 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.¹¹ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[27] This appeal is one to which s.400 of the Act 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.”

[28] The test under s.400 is “a stringent one.”¹²

[29] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹³ In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’14

[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.¹⁵ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹⁶

[31] We are satisfied that the first ground of appeal identifies an arguable case of appealable error and that it engages the public interest. It is plainly arguable on the state of the evidence that the Senior Deputy President wrongly concluded that some of the persons engaged as dentists in the Appellant’s dental practices were employees, and therefore to be counted in assessing whether the Appellant was a small business employer at the time of the Respondent’s dismissal. If made out on appeal, the error is of the kind identified in House v King 17 and material to the outcome of the case. In the circumstances, it would be manifestly unjust not to grant permission to appeal and we do so.

The appeal

[32] As earlier noted, the first ground of appeal contends that the Senior Deputy President erred in his conclusion that the dentists engaged by the Appellant were employees and should therefore be counted in the analysis of whether the Appellant was a small business employer.

[33] The Senior Deputy President correctly identified at [7] of the Decision the matters to be assessed in dealing with the requirements of s.396, including whether the dismissal was consistent with the Code. He correctly states the relevant question at [8] of the Decision that required determination, namely whether the Appellant was a small business employer as defined by s.23 of the Act at the relevant time.

[34] Before the Senior Deputy President the Respondent provided a witness statement dated 1 December 2018 in which she listed 22 persons which she claimed were employees 18 and a supporting photograph of persons engaged by the Appellant taken at its annual dinner in 2018.19 The list of persons said to be employees provided by the Respondent relevantly included 7 dentists and Mr Kelvin Guan who was identified as a “Working Director”.

[35] The Appellant’s Director Mr Kelvin Guan also gave evidence in the proceedings before the Senior Deputy President by way of a witness statement dated 18 December 2018 in which he said there were 14 employees at the time of the Respondent’s dismissal. 20 In a supplementary statement21 Mr Guan said that of the 22 employees identified by the Respondent:

•  the 7 dentists identified by the Respondent as employees were contractors and in support of that contention included extracts of contracts entered into between some of the dentists and the Appellant; 22

•  two of the employees in the Respondent’s list named as “Rebecca” and “Natalie” both left the Appellant’s employ to study full-time respectively on 5 August and 14 July 2018;

•  Mr Lawrence Guan was the Appellant’s contracted business consultant and was not an employee; and

•  Dr Silvia was a sub-contractor Doctor and had terminated her contract with the Appellant in June 2018. 23

[36] The only other apparent evidence before the Senior Deputy President in relation to the contractual status of the dentists was a witness statement dated 22 January 2019 prepared by Ms Jun Zhang who is the wife of the Appellant’s Director Mr Guan. She is also engaged as a dentist in one of the Appellant’s practices. In her statement Ms Zhang described herself as “a dentist employed by Advanced Health Invest Pty Ltd.” 24

[37] The Senior Deputy President accepted Mr Guan’s evidence that four of the persons listed by the Respondent as employees should not be included in the number of employees. 25 In the result there was a reduced number of persons identified on the Respondent’s list of names, though it was more than 15. Critical to the Senior Deputy President’s conclusion that the Appellant was not a small business employer was his finding that the 7 dentists engaged by the Appellant were not independent contractors as contended by the Appellant but rather were employees. In reaching this conclusion the Senior Deputy President assessed and made findings in relation to the evidence as follows:

“[14] Annexure 2 to Mr Guan’s second statement consists of extracts from a number of different documents. The first two pages of the annexure appear to be (a small part of) an agreement which purports to be a ‘Contractors Agreement’ in which ‘the Contractor’ (Dental Comprehensive Care Pty Ltd) ‘sends its employee’ Dr Tian Shu Wang (who does not appear to be a person included in the applicant’s list of employees) to work as a dentist to provide dental services at the respondent’s premises. The next two pages appear to be an extract from an agreement which also purports to be a ‘Contractors Agreement’, this time in relation to a dentist whose surname name has been redacted (though his first name, Max, corresponds to one of the people identified by the applicant). This agreement appears, however, to have been made directly with ‘Dr Max’. The next three pages appear to be an extract from a ‘Contractors Agreement’ reached directly between another dentist whose surname has also been redacted. (I note her first name, Ying, does not appear to correspond to any of the people identified by the applicant.) The next four pages of the annexure appear to be an extract of a ‘Contractors Agreement’ made directly between the respondent and a dentist whose first name is Mary (which could correspond to one of the dentists named by the applicant).The last two pages of the annexure appear to be an extract from another document purporting to be a ‘Contractors Agreement’ made directly between the respondent and a dentist, whose first name is Louise (who could be one of the dentists named by the applicant).

[15] None of these extracts appears to represent anything other than a very small part of each document. Two of the pages extracted are ‘tables of contents’, the text of which implies that each document consists of at least 19 pages. Despite the documents being described as ‘Contractors Agreements’, they are very far from amounting to persuasive evidence that the dentists in question are anything other than employees of the respondent. There is virtually no evidence in relation to those factors which one would normally consider in determining whether a person is a contractor rather than an employee, such as the ability to delegate, the basis of payment, the provision of tools and equipment, the allocation of commercial risks, control over the work or the degree of his or her independence.

[16] My doubts about whether the dentists who work for the respondent are genuinely contractors, rather than employees, are reinforced by Dr Zhang’s evidence. Dr Zhang works as a dentist for the respondent. In her statement, she describes herself an employee of the respondent. 

[17] On balance, I am satisfied that the dentists should be considered as employees of the respondent.”

[38] It is clear on review of the Decision that in dealing with the relevant question before him as to the number of employees the Senior Deputy President considered the evidence which was, taken at its highest, limited to the content of witness statements provided by the Respondent, Mr Guan and Ms Zhang. Specifically, that evidence was confined to the Respondent’s list of 22 claimed employees and an accompanying annual dinner photograph; Ms Zhang’s description of herself as an employee; and Mr Guan’s evidence as to the formal contracts in place with the dentists and his evidence as to four of the names on the Respondent’s employee list that should be removed, referred to above at [37].

[39] It is apparent from a review of the transcript that the witness statement evidence referred to above and in particular the evidence of Mr Guan as to the nature of the contractual status of the dentists, was not subject to further examination in chief or cross-examination or challenge, a point conceded by Counsel for the Respondent in closing oral submissions in the proceedings before the Senior Deputy President. 26 However, as was also argued before us on appeal, Counsel for the Respondent submitted before the Senior Deputy President that the onus of establishing the true nature of the contractual status of the dentists was borne by the Appellant and it had failed to discharge that onus.

[40] It appears to us that the Senior Deputy President reached his conclusion as to the employment status of the Appellant’s dentists on the barest of evidence, to which we have already referred. Acceptance of that evidence, which in our view is not particularly probative, was central to the Senior Deputy President’s finding that the Appellant employed at least 15 employees at the time of the Respondent’s dismissal.

[41] True it is that the Appellant also provided limited probative evidence but that evidence was in a written form by way of extracts of certain dentists’ contracts which on their face supported the Appellant’s contention that the dentists were independent contractors. Certainly there was no evidence adduced by the Respondent to seriously contradict that which was contained in the contractual extracts. Moreover, neither the Appellant nor the Respondent adduced any other evidence directed to the indicia that would ordinarily be considered in assessing whether a person was an employee or an independent contractor, a point made by the Senior Deputy President at [15] of the Decision.

[42] While the Respondent contended that the Appellant bore an onus to establish the contractual status of the dentists in pressing its jurisdictional objection, a failure of the parties to provide probative evidence on what was a contested point does not relieve the Commission of its statutory obligation to reach the requisite satisfaction as to the status of the disputed persons or the basis of relevant and probative evidence. A state of satisfaction on the question whether 7 dentists were employees or independent contractors cannot be safely arrived at on the basis only of an assertion and a dated photograph on the one hand and extracts of a contract said to be a template suggesting engagement as an independent contractor on the other. In circumstances where there is a contest over a key issue and an apparent absence of probative evidence, orders for the production of documents or witnesses may be made in order that the Commission can inform itself. This did not occur in the proceedings before the Senior Deputy President.

[43] As to the issue of onus agitated by the Respondent, it must be said that the extent to which the legal concept of onus or burden of proof arises in relation to matters considered by an administrative tribunal such as the Commission is a difficult one. However, in the context of the question whether a dismissal is unfair, to the extent that there is a legal onus or something analogous to it, the onus rests on the applicant in the sense that it is the applicant who bears the risk of failure if the satisfaction required by s.385 including s.385(c) is not reached. 27 As to evidentiary onus, plainly a party seeking to establish a fact bears onus of adducing evidence necessary to establish that fact. In a practical sense, in most cases the question of where an evidentiary onus resides will be answered by asking: in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about the matter were given? In this case, the Appellant’s evidentiary material was insufficient to enable the Senior Deputy President to reach a conclusion as to the status of the 7 dentists, but so too was the Respondent’s evidence. A mere assertion from a person not party to the contractual arrangements coupled with a photograph is an insufficient basis to conclude that a particular person engaged by the Appellant is an employee.

[44] Having reviewed all the evidence before the Senior Deputy President, including the transcript of the proceedings, we do not consider the Senior Deputy President’s conclusion that each of the 7 dentists were employees of the Appellant, was reasonably open on the evidence. Critically, there was almost no evidence and certainly insufficient evidence directed to the indicia that would normally be considered in assessing whether a person or persons were employees or contractors. It is concerning that such a situation has arisen in a matter in which both parties were given permission for representation by lawyers and were represented in the original proceedings. It is unsatisfactory that either permitted the case to be determined on such a paucity of probative evidence on the critical question of the employment status of the 7 dentists. On the other hand, the Senior Deputy President was entitled to order, direct or request the parties to adduce further evidence on the subject and perhaps should have done so. Nonetheless, there was no sound evidentiary basis to support the Senior Deputy President’s conclusion that the Appellant was not a small business employer. By having reached the conclusion we are satisfied that the Senior Deputy President fell into error. The first ground of appeal is made out.

[45] A conclusion whether the Appellant is a small business employer is central to the way in which the case thereafter is conducted. The Respondent’s submission that the erroneous finding would not have made a difference to the outcome is rejected. If the Appellant is a small business employer the application was not considered by reference to compliance with the Code. Self-evidently, the considerations in s.387 of the Act are different in a material sense to those raised by the Code. For that reason, the Senior Deputy President’s ultimate conclusion cannot be permitted to stand and we therefore uphold the appeal on this ground.

Conclusion

[46] As we have mentioned, the decision subject to appeal was made under Part 3-2 - Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. For the reasons given, we are satisfied that it is in the public interest to grant permission to appeal. We grant permission and uphold the appeal.

[47] Given our findings in the appeal, it is not appropriate to determine the application to finality for ourselves. There may be questions as to the admission of further evidence and cross examination of witnesses, which are more properly dealt with by a single Member on remittal.

[48] We make the following orders:

(1) Permission to appeal is granted;

(2) The appeal is upheld;

(3) The Decision in [2019] FWC 2315 is quashed; and

(4) Matter U2018/10383 is remitted to the Region 1 Regional Coordinator for allocation to another Member for re-hearing.

DEPUTY PRESIDENT

Appearances:

Q Guan for the Appellant.

W Clarke for the Respondent.

Hearing details:

2019.

Melbourne and Sydney (by video):

June 11.

Printed by authority of the Commonwealth Government Printer

<PR710590>

 1   [2019] FWC 2315

 2   [2019] FWC 2315 at [7]

 3   Ibid at [18]

 4   Ibid

 5   Ibid at [52] – [57]

 6   Ibid at [58] – [60]

 7   Ibid at [61]

 8   Ibid at [62]

 9   Ibid at [63] – [75]

 10   See also Clermont Coal Pty Ltd v Brown [2015] FCAFC 136 at [4] per Jessup J (with whom Buchanan and Rangiah JJ agreed)

11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

12 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)

13 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

14 [2010] FWAFB 5343; 197 IR 266 at [27]

15 Wan v AIRC (2001) 116 FCR 481 at [30]

16 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 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]

 17   [1936] HCA 40; (1936) 55 CLR 499 at 505

 18   Appeal Book at pp.15-16

 19   Ibid at p.64

 20   Ibid at p.107

 21   Ibid at p.219

 22   Ibid at pp.226-238

 23   Ibid at p.221

 24   Ibid at p.103

 25   [2019] FWC 2315 at [18]

 26   Transcript of proceedings 22 March 2019, PN1547

 27   See Teterin v Resource Pacific Pty Limited T/A Ravensworth Underground Mine [2014] FWCFB 4125 at [23]-[29] and [31]-[32]; Jain v Infosys Limited T/A Infosys Technologies Limited [2014] FWCFB 5595 at [34]-[35]