Mallinson v Algon Steel Pty Ltd [2016] FWC 4062 (11 July 2016) [2016] FWC 4062 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Shane Mallinson v Algon Steel Pty Ltd (U2016/1144) COMMISSIONER SAUNDERS NEWCASTLE, 11 JULY 2016 Application for relief from unfair dismissal – resignation or dismissal [1] Mr Shane Mallinson claims that he was unfairly dismissed following a heated conversation he had with his supervisor on the morning of 24 February 2016 about his absences from work, after which Mr Mallinson left the workplace and remained away from work for the balance of the day. Algon Steel Pty Ltd (Algon Steel) alleges that Mr Mallinson voluntarily resigned from his employment. Was Mr Mallinson dismissed? [2] Mr Mallinson must have been dismissed in order to succeed in his unfair dismissal claim against Algon Steel (s.385(a) of the Fair Work Act 2009 (Cth) (the Act)). [3] Section 386 of the Act governs when a person has been dismissed: “386 Meaning of dismissed (1) A person has been dismissed if: (a) the person's employment with his or her employer has been terminated on the employer's initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [4] Mr Mallinson contends that he did not resign on 24 February 2016, and that his employment was terminated on Algon Steel’s initiative on 25 February 2016. Mr Mallinson does not rely on any case of forced resignation pursuant to s.386(1)(b) of the Act. [5] Algon Steel submits that Mr Mallinson’s employment came to an end by reason of his resignation on 24 February 2016. In the event that I find against Algon Steel on this point, Algon Steel does not dispute Mr Mallinson’s contention that his employment was terminated on Algon Steel’s initiative on 25 February 2016. [6] Accordingly, the first issue I need to determine is whether Mr Mallinson resigned on 24 February 2016. If I find that he did, I will need to deal with Mr Mallinson’s argument that there were “special circumstances” which meant that Algon Steel was obliged to allow a reasonable period of time to lapse, during which Mr Mallinson says he clearly communicated to Algon Steel that he did not intend to resign and wished to withdraw his resignation. Principles concerning resignation [7] Whether the words and/or conduct by an employee amount to a resignation is to be determined objectively. That is, the words and/or conduct by an employee must be construed according to how they would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties. 1 [8] A Full Bench of the Australian Industrial Relations Commission considered the issue of a resignation given in “special circumstances” in Ngo v Link Printing Pty Ltd 2 ( Ngo ): “[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows: ‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said: “In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ... However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.” Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows: “If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.”’ [13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo's statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo's resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this. [14] We have considered the evidence of Link's witnesses as to their reaction to Mr Ngo saying that he resigned. Even if they did not believe Mr Ngo when he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was "not resigning". [15] We have also considered the effect of Mr Corrigan's words (as recorded in Mr Ngo's statement) "Okay, you must give us a letter in writing, and give it to me tomorrow". It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant. [16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88]. [17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314 , a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111). [18] In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it.” Findings of fact and credit in relation to the alleged resignation [9] Mr Mallinson commenced employment with Algon Steel in about 2007. From about 2012, he reported to Mr Trevor Reid, Workshop Supervisor. [10] During the latter part of 2015, Mr Mallinson indicated to Mr Reid that he was having problems with his home life. During January 2016, Mr Reid identified what he considered to be a pattern of unexplained absences from work by Mr Mallinson. [11] On 18 January 2016, Mr Reid discussed with Mr Mallinson his poor attendance at work. [12] On 19 January 2016, Mr Mallinson was upset at work. He informed Mr Reid that he had separated from his long term partner and needed to leave work to find a place to live. Mr Reid responded to Mr Mallinson by saying words to the effect: “Okay, understand but we need you here. Sort it out and get back.” Mr Mallinson then left work and returned to work the next day. He was then recorded as being absent from work for the following two days. [13] In the first week of February 2016, Mr Mallinson had the week off as sick leave with a doctor’s certificate. [14] On 18 February 2016, Mr Mallinson was working with a colleague when an accident took place in the workplace. Mr Mallinson’s colleague was seriously injured in the accident and required hospitalisation. [15] On 19 February 2016, Mr Mallinson attended work but left after two hours of commencing work on sick leave. [16] Mr Mallinson attended work on 22 and 23 February 2016, but left work early on 22 February 2016. [17] On 24 February 2016, Mr Reid and Mr Mallinson agree that they spoke shortly after the morning “smoko” break, at about 9:30am. There is a dispute as to what was said during the conversation. I prefer Mr Reid’s evidence over Mr Mallinson’s evidence, for the reasons set out in paragraph [32] below. [18] Mr Reid gave evidence in his witness statement that the conversation was to the following effect: “Mr Reid: Your attendance at work still needs to improve. You can’t be leaving work early all the time and without approval. If it keeps going this way I will have to make a written file note. Mr Mallinson: You’re joking; well I won’t be doing any more overtime or weekend work. Mr Mallinson then walked off to the workshop. Mr Reid went back into the office to attend payroll duties. After about five or 10 minutes, Mr Mallinson entered the office and said to Mr Reid words to the following effect: Mr Mallinson: You know what, better still; you can stick your job up your fucking arse. Mr Reid understood from these words that Mr Mallinson had decided to resign from his job. Mr Mallinson then left the office. Mr Reid attempted to follow him to speak to him, however he quickly drove off in his car. This was the last interaction Mr Reid had with Mr Mallinson.” [19] Mr Reid was cross examined about these matters by Mr Mallinson’s representative at the hearing. Mr Reid’s evidence in cross examination was consistent with his witness statement. [20] Mr Mallinson gave evidence as follows in his witness statement concerning his conversation with Mr Reid on 24 February 2016: “ I was stressed (has a certificate for the time off) and left my workplace to visit a colleague that was hospitalised as a result of a workplace accident. When I came back to work management attempted to issue me a warning for the absence. ‘In the heat of the moment’ I did say, if you give me a warning for that you can shove your job and left the workplace. A letter confirming my resignation incidentally arrived at my home by way of email before I did that same day. However the next day I arrived at work and told management unambiguously that I did not resign. Management replied that they were going to let me go anyway and I should go and get unemployment benefits and sort out what I want to do with my life.” [21] During cross-examination, Mr Mallinson accepted that there were two parts to his conversation with Mr Reid on 24 February 2016. In the first part, which took place in the workshop, Mr Mallinson accepts that Mr Reid spoke to him about his absences from work. In the second part, which took place in the office, Mr Mallinson denied that he said to Mr Reid words to the effect: “you know what, better still; you can stick your job up your fucking arse”. Mr Mallinson maintained that he said to Mr Reid “if you give me a warning for that you can shove your job”. [22] There is no dispute that Mr Mallinson left the workplace immediately after the second part of his discussion with Mr Reid and did not return to work for the balance of the day. Mr Mallinson drove straight to his partner’s house, which he described as “home”. The trip took about 13.5 minutes. Mr Mallinson remained at his partner’s house for the balance of the day. [23] There is also no dispute that Mr Mallinson received on his mobile phone the email sent to him by Algon Steel at 5:11pm on 24 February 2016, and he read the letter attached to the email at about that time. Mr Mallinson’s oral evidence in that regard differed from his witness statement, in which he said “a letter confirming my resignation incidentally arrived at my home by way of email before I did that same day”. Mr Mallinson explained in his oral evidence that he was referring to his partner’s home in that part of his witness statement. However, there remains a difference between his oral evidence, to the effect that he was at “home” (his partner’s house) when he received and read the email and attached letter at about 5:11pm on 24 February 2016, and his witness statement, where he said, in effect, the letter arrived at “home” by way of email before he did on that day. Mr Mallinson arrived at “home” at between about 10am and 10:30am on 24 February 2016. The email was sent to Mr Mallinson at 5:11pm. Accordingly, I prefer Mr Mallinson’s oral evidence in relation to this issue over his witness statement. [24] When Mr Mallinson arrived at his partner’s house after leaving work on 24 February 2016, he was “worked up” in relation to his heated conversation with Mr Reid. Mr Mallinson’s partner told him to calm down and relax. By about 12:30pm on 24 February 2016, Mr Mallinson had commenced consuming alcohol. He continued to drink alcohol during the afternoon and evening, with the result that he was quite intoxicated by about 6pm. Mr Mallinson described himself as being “pretty under the weather” by about 6pm. 3 [25] The letter sent to Mr Mallinson at 5:11pm on 24 February 2016 was in the following terms: “Dear Guy, RE: Resignation In light of your decision to resign from Gonzalez Steel on the 24 February 2016 and leave it without providing sufficient notice we hereby accept your resignation effective immediately. Your employment is terminated as of 24 February 2016. You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter. Yours sincerely Juan Gonzalez Director” [26] There is no dispute that Mr Mallinson left a voicemail message for Mr Reid on his work phone at 6:42pm on 24 February 2016. In the voicemail message Mr Mallinson apologised to Mr Reid for what had happened earlier in the day. 4 [27] Mr Mallinson says that he tried to contact Mr Reid by telephone at various times on 24 February 2016, both prior to and after receiving the letter from Algon Steel at about 5:11pm on 24 February 2016. Mr Mallinson also says that he went through to Mr Reid’s answering machine on each occasion that he called Mr Reid on 24 February 2016, but he only left a message for Mr Reid at 6:42pm. [28] Mr Reid says that he did not have any contact with Mr Mallinson between his departure from the workplace at about 10am and the voicemail message Mr Reid left for him at 6:42pm. 5 Mr Reid could not remember having any telephone calls from Mr Reid that were unanswered on 24 February 2016. 6 I prefer Mr Reid’s evidence in relation to this issue, for the reasons set out in paragraph [32] below. [29] At 9:54pm on 24 February 2016, Mr Mallinson sent an email responding to Algon Steel’ s 5:11pm email, in the following terms: “I don’t no [sic] why you sent me that I have a doctor’s certificate for today, tomorrow and Friday.” [30] On the morning of 25 February 2016, Mr Mallinson attended work at Algon Steel and spoke to Mr Francisco Gonzalez, General Manager. Mr Mallinson told Mr Gonzales that he had not resigned and did not want to resign. 7 Mr Gonzales was not willing to re-employ Mr Mallinson or allow him to retract or withdraw his resignation. [31] On 29 February 2016, Mr Mallinson sent an email in the following terms to Algon Steel’s Human Resources Manager, Ms Alison Kelly: “I just went in to pick up my separation certificate and you won’t be in till Tuesday, so when you do right it out for me it would have to say, well when I spoke to Frank I said I’m not quitting or signing any paperwork, he said that’s okay we’re going to let you go and said they were going to do this awhile ago. So could you please make sure it states I was fire, this is for the purpose of being paid straight away from centre link. Thanking you, yours truly Guy Mallinson” [32] There are a number of discrepancies between the evidence given by Mr Mallinson and the evidence given by Mr Reid in relation to the events leading up to and including the “heated” discussions at the workplace on the morning of 24 February 2016 and the communications, or attempted communications, between Mr Mallinson and Mr Reid during the balance of that day. I prefer the evidence of Mr Reid over the evidence of Mr Mallinson in relation to those discrepancies, including the important “heated” discussions at the workplace on the morning of 24 February 2016, for the following reasons: (a) First, Mr Reid agreed in cross examination that Mr Mallinson had, in the past, been a good employee and the two of them (Mr Reid and Mr Mallinson) were mates. 8 I am satisfied that Mr Reid has sympathy for the position Mr Mallinson now finds himself in, and Mr Reid has no reason to be untruthful in the evidence he gave to the Commission. Further, he gave direct, responsive and frank answers to the questions put to him in cross examination. He also had a good recollection of the relevant events, particularly his discussions with Mr Mallinson leading up to and on 24 February 2016. There is no reason for me not to accept the evidence given by Mr Reid. I find that he was a reliable and credible witness and I accept the truth and accuracy of the evidence he gave; (b) Secondly, if, as he says, Mr Mallinson was trying to contact Mr Reid “all day” after leaving the workplace on 24 February 2016, no credible explanation was given by Mr Mallinson as to why he did not (i) leave other voicemail messages for Mr Reid on that day, (ii) call other persons in management prior to the close of business on 24 February 2016, or (iii) at any time after leaving work on 24 February 2016, drive, or be driven (after he commenced consuming alcohol), the short (13.5 minute) trip back to the workplace to speak to Mr Reid or any other person in management to retract or withdraw his resignation; (c) Thirdly, Mr Mallinson repeatedly emphasised what he perceived to be the conditional nature of his statement to Mr Reid. In particular, Mr Mallinson emphasised that he said “ if you give me a warning for that you can shove your job” [emphasis added]. It follows, according to Mr Mallinson’s argument, that because no such warning was given, he could not have resigned. However, there is no doubt that Mr Mallinson was upset in relation to his discussion with Mr Reid, he said to Mr Reid words to the effect “shove your job”, and then Mr Mallinson immediately left the workplace. In light of the fact that there was no opportunity for Mr Reid to give Mr Mallinson a warning before he left the workplace, the unambiguous nature Mr Mallinson’s statement to Mr Reid about “shoving” the job, and Mr Mallinson did not, in his email reply sent at 9:54pm on 24 February 2016, deny Algon Steel’s contention that he had resigned earlier in the day, I do not find credible Mr Mallinson’s argument that he did not resign or intend to resign; (d) Fourthly, Mr Mallinson has a poor memory in relation to the timing of the relevant events in this matter. For example, notwithstanding documentary evidence in the form of emails and other correspondence which establishes that the workplace accident took place on 18 February 2016 and Mr Mallinson had his “heated” discussions with Mr Reid on 24 February 2016, Mr Mallinson maintained in his oral evidence that these events took place in March 2016; (e) Fifthly, Mr Mallinson did not include anything in his witness statement or his written outline of argument to the effect that he made a number of attempts to contact Mr Reid by telephone on 24 February 2016, or that he left a message for Mr Reid at 6:42pm on that day. Those matters are obviously important to Mr Mallinson’s case and there is no explanation as to why they were not included in his witness statement or outline of argument; and (f) Sixthly, the fact that Mr Mallinson was drinking alcohol from 12:30pm on 24 February 2016 and was “pretty under the weather” by 6pm on that day means that he is unlikely to have a good recollection of the events that took place on that afternoon and evening, including his alleged attempts to speak to Mr Reid by telephone. Application of legal principles to facts re: resignation [33] In the present case, I am of the view that any reasonable person in the position of Algon Steel who had knowledge of the background of the dealings between Mr Mallinson and his employer would have construed the words said by Mr Mallinson to Mr Reid on 24 February 2016, as set out in paragraph [18] above, together with Mr Mallinson’s conduct in leaving the workplace at about 10am on 24 February 2016 and not returning for the balance of the day, as unambiguous words and conduct of resignation. Accordingly, Algon Steel was prima facie entitled to treat Mr Mallinson’s words and conduct on 24 February 2016 as an unambiguous resignation by him, subject to there being “special circumstances”. 9 [34] I am satisfied that there were “special circumstances” in existence at the time of the discussion between Mr Mallinson and Mr Reid on 24 February 2016. In particular: (a) Mr Mallinson had been involved in a serious workplace accident on 18 February 2016, in which one of Mr Mallinson’s work colleagues had been seriously injured and required hospitalisation. Mr Mallinson was stressed as a result of those events, and he had a medical certificate covering the period including 24 February 2016; (b) Mr Mallinson had been experiencing personal problems in late 2015 and early 2016 in connection with his separation from his long term partner of 24 years and the illness of his partner. Mr Mallinson had been absent from work for numerous days and parts of days in early 2016; and (c) The words spoken by Mr Mallinson to Mr Reid on 24 February 2016, together with Mr Mallinson’s conduct in leaving the workplace immediately after those discussions, can fairly be described as having happened “in the heat of the moment”. [35] Accordingly, it would have been unreasonable for Algon Steel “to assume a resignation [from Mr Mallinson] and accept it forthwith”. 10 That did not happen in this case. Algon Steel waited until after the close of business on 24 February 2016 before sending its letter to Mr Mallinson at 5:11pm, accepting his resignation. The issue is whether Algon Steel allowed a reasonable period of time to lapse before informing Mr Mallinson at 5:11pm that it had accepted his resignation. In my view, Algon Steel did allow a reasonable period of time to lapse, for the following reasons: (a) First, Mr Reid attempted to speak to Mr Mallinson after their heated discussion but before Mr Mallinson left work on 24 February 2016. Mr Reid was unable to do so because Mr Mallinson drove off quickly in his car; (b) Secondly, Algon Steel waited about 7 hours before sending its letter to Mr Mallinson at 5:11pm, accepting his resignation; and (c) Thirdly, Mr Mallinson went straight to his partner’s house after his heated discussions with Mr Reid. It only took him about 13.5 minutes to drive from the workplace to his partner’s house. Mr Mallinson remained at his partner’s house for the remainder of the day. At any time that day he could have driven, or been driven (after he commenced consuming alcohol), the short trip back to the workplace to speak to Mr Reid or any other person in management to retract or withdraw his resignation. Alternatively, he could, at any time prior to 5:11pm, have called Mr Reid or any other person in management to retract or withdraw his resignation. He did not do so and there was nothing preventing him from doing so. [36] In light of my earlier finding that Mr Mallinson did not contact, or attempt to contact, Mr Reid or any other person from Algon Steel between his departure from the workplace at about 10:00am on 24 February 2016 and his voicemail message for Mr Reid at 6:42pm on 24 February 2016, there were no circumstances that arose during the period prior to sending the letter to Mr Mallinson at 5:11pm on 24 February 2016 which put Algon Steel on notice that further inquiry was desirable or necessary to see whether resignation was Mr Mallinson’s true intention. 11 [37] The next point is whether Mr Mallinson was entitled to withdraw his resignation. In my view, he was not. The first time that Mr Mallinson alleges he retracted or withdrew his resignation is in the message he left for Mr Reid at 6:42pm on 24 February 2016. I am not satisfied that the message Mr Mallinson left for Mr Reid at 6:42pm on 24 February 2016 was a retraction or withdrawal of his resignation. What Mr Mallinson communicated to Mr Reid in that message was an apology for what had happened earlier in the day, not a retraction or withdrawal of his resignation. However, even if Mr Mallinson had retracted or withdrawn his resignation at 6:42pm on 24 February 2016, it would, in my view, have been too late. The heat of the moment had died down by about lunch time on 24 February 2016. Further, and for the same reasons, Mr Mallinson’s attempt to withdraw his resignation on the morning of 25 February 2016 in his discussions with Mr Gonzalez was too late. 12 Alternative analysis of repudiation [38] In the alternative, I am satisfied that Mr Mallinson’s conduct on 24 February 2016, as set out in paragraph [18] above, was sufficient for Algon Steel to reach a reasonable state of belief that Mr Mallinson had renounced his contract of employment and no longer wished to offer his services for the benefit of his employer. 13 [39] Algon Steel elected to accept Mr Mallinson’s repudiation of the contract in its letter sent to him by email at 5:11pm on 24 February 2016, thereby bringing Mr Mallinson’s contract of employment to an end. [40] Mr Mallinson presented for work on 25 February 2016. However, Algon Steel, having accepted Mr Mallinson’s repudiation of the contract, decided not to change its decision in this regard, and Mr Mallinson was not re-employed, or taken to have remained a continuing employee, as the case may be. [41] Thus, Mr Mallinson’s employment was terminated at his initiative as the repudiating party, not at the initiative of Algon Steel as the party accepting the repudiation. 14 Conclusion [42] For the reasons set out above, I am satisfied that Mr Mallinson resigned, at his own initiative, from his employment with Algon Steel. Mr Mallinson was not forced to resign, nor was his employment terminated on Algon’s Steel’s initiative. It follows that Mr Mallinson was not dismissed within the meaning of s.386 of the Act. I therefore dismiss Mr Mallinson’s Application for Relief from Unfair Dismissal. COMMISSIONER Appearances : Mr J Hawkins , Industrial Advocate, for the applicant Mr M Weightman , Counsel, along with Mr T Burke , Solicitor, on behalf of the respondent. Hearing details: 2016. Newcastle: June, 21. 1 Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346 ; (2010) 201 IR 64 at [82] 2 (1999) 94 IR 375 3 PN289 4 PN588 5 PN558 6 PN559 7 PN437 & PN447 8 PN562-6 9 Ngo at [12] 10 Ibid 11 Ibid 12 Ngo at [17]-[18] 13 Koompahtoo Local Aboriginal Land Council v Sapine Pty Ltd [2007] HCA 61 ; (2007) 233 CLR 115 at [44] - [49] 14 Taylor v AGAS National [2016] FWC 3435 at [35] Printed by authority of the Commonwealth Government Printer <Price code C, PR581906>