1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Abhilash Tripathi v Tricor Services (Australia) Pty Ltd (C2023/8047) COMMISSIONER CONNOLLY MELBOURNE, 7 MAY 2024 Application to deal with contraventions involving dismissal – whether binding settlement agreement reached – found dispute extinguished by a binding settlement agreement – application dismissed. [1] Mr Abhilash Tripathi (the Applicant) has made an application to deal with contraventions involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Tricor Services (Australia) Pty Ltd (Tricor). The Applicant has requested a certificate pursuant to section 368(3)(a) of the Act be issued to allow him to take this matter further. [2] The Respondent has raised a jurisdictional objection that the application is barred by a settlement agreement reached by the parties in relation to the Applicant’s employment during the Conference on 6 March 2024 before the Commission. The Applicant objects to this and states that no such binding agreement was reached. The Commission must now first determine the threshold jurisdictional issue of whether the application is barred by a settlement agreement. Background [3] Mr Tripathi commenced employment with Tricor on 7 June 2023 as a Director, Business Development. [4] Mr Tripathi was notified in writing on 7 December 2023 that his employment was being terminated effective immediately. [5] Mr Tripathi filed a Form F8 application with the Commission on 20 December 2023. [6] On 5 January 2024, Tricor filed a Form F8A Response. The response did not identify any jurisdictional objections to the application. 2024 FWC 1173 [Note: An appeal pursuant to s.604 (C2024/3383) was lodged against this decision - refer to Full Bench decision dated 16 November 2024 [[2024] FWCFB 371] for result of appeal.] DECISION 2024 FWC 1173 2 [7] On 23 January 2024, Commission staff conciliators conducted a telephone conciliation which did not result in a settlement of the dispute and the matter was placed on hold to allow the parties to consider their positions. [8] On 23 February 2024, the matter was allocated to my Chambers. [9] On 26 February 2024, my Chambers sought the views of the parties on whether there was utility in conducting a further conciliation before me in an effort to resolve the matter. Mr Tripathi requested a certificate be issued on a deferred basis. Tricor requested a further conciliation conference. Not being satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or were unlikely to be unsuccessful, I listed the matter for a further conference. [10] On 6 March 2024, I conducted a conference in relation to Mr Tripathi’s application pursuant to s.368 of the Act. Mr Tripathi represented himself and the Respondent was represented by Mr Thomas Du (Solicitor for the Respondent) who, there being no objections, was granted leave to appear. Ms Juhi Mittal (Manager, Human Resources) was also in attendance. [11] At commencement, the parties were made aware the conference was being conducted on a private, confidential, and without-prejudice basis. Following preliminary matters, the parties engaged in settlement discussions. During this process, I convened separate discussions with the parties to understand their principal issues and concerns to determine whether there was potential for the matter to reach settlement on mutually acceptable terms. [12] Followings some discussions, the basis of an agreed understanding was reached that involved the Respondent, in addition to the standard Commission terms, providing Mr Tripathi with an agreed settlement sum and Mr Tripathi retaining the ability to pursue an alleged underpayment claim pursuant to the terms of his contract of employment. On this basis, the parties considered a draft deed of release prepared by my Chambers in full and final settlement of the application, subject to agreed terms. [13] To this end, at 11.58am on 6 March 2024, my Chambers emailed a draft deed to both parties for their review and consideration. The text of the email from my Chambers was in the following terms1: “Dear parties, Please find attached, Terms of Settlement. If acceptable, please ensure the Deed is appropriately signed, witnessed and returned to the respective parties and Chambers within 24 hours.” [14] Both parties subsequently reviewed the draft deed and made respective amendments. At 12.26pm, my Chambers provided a further email to both parties with the finalised Deed in the following terms2: “Dear parties, 2024 FWC 1173 3 Please see attached, FINAL Terms of Settlement with amendments as discussed.” [15] At approximately 12.32pm, my Chambers indicated that the terms of the finalised Deed were agreed between the parties and both parties were ready to record the terms of the agreement reached between them. [16] At 12.35pm, I rejoined both parties in the conference and my Chambers commenced a recording of the proceeding. This recording was kept by Chambers and later distributed to the parties upon request. [17] Upon entering the conference, I stated the following: “Thank you, I understand the parties have reached an agreement of settlement in the following terms…” [18] I then proceeded to read the entire content of the deed that had been provided to the parties in the email at 12.26pm. Towards the conclusion of the conference the following exchange occurred (extract taken from the recording): “Commissioner Connolly: Mr Tripathi, as the Applicant, do you agree to these terms of settlement? Applicant: Yes, I agree to these terms of settlement. Commissioner Connolly: Ms Mittal, on behalf of the Respondent, do you agree to these terms? Mrs Mittal: Yes, I do agree.” [19] I then ended the conference and the recording by saying the following: “Thank you for your time and assistance this morning. That concludes the conference and of course the settlement between the parties, all that’s required is for the deed to be executed and its terms to be complied with as agreed.” [20] At 14.24pm on 6 March 2024, my Chambers received an email from the Respondent attaching a copy of the Terms of Settlement signed by the Respondent with the Applicant carbon copied. [21] At 7.23am on 7 March 2024, my Chambers received an email from Mr Tripathi indicating he would like to exercise his option to ‘opt-out’ of the settlement reached and requested a certificate be issued. In his email, Mr Tripathi indicated the following3: “…Upon closer review of the terms, I have discovered a major conflict with my alternative underpayment of salary claim which has the potential to prevent me from seeking the rightful justice for that claim purpose. 2024 FWC 1173 4 I apologise for the inconvenience and would request Commissioner Connolly to grant me the Certificate to pursue the General Protections claim, as per my earlier request last week.” [22] In response to this correspondence, my Chambers advised both the Applicant and the Respondent that it was my preliminary view that a binding agreement was reached during the video conference on 6 March 2024 and that it was open to the Commission to dismiss the application in accordance with the High Court authority in Masters v Cameron [1954] HCA 72. Chambers further sought the views of both parties on whether there was a dispute that a binding settlement agreement exists and whether the parties required this question to be determined, providing copies of relevant authorities on whether a binding settlement had been reached for their consideration. [23] On 8 March 2024, Mr Tripathi provided further information setting out the reason why he now sought to opt-out of the agreement reached. His position is as follows: “8. At about 11.57am., [sic] the Fair Work Commission team sent an “OFFICIAL” email to both parties with the attachment of a draft settlement agreement and with the email message and instruction as per below: ‘Dear parties, Please find attached, Terms of Settlement. If acceptable, please ensure the Deed is appropriately signed, witnessed and returned to the respective parties and Chambers within 24 hours.’ 9. The email and message was clearly read and understood by me as per the exact meaning of the words. 10. I clearly understood from the words “If acceptable… and within 24 hours”, that I can review the terms during the next 24 hours and if I find them acceptable to me, I can then proceed to sign, witness and return to the parties and FWC Chambers, which will then lead to a conciliation settlement occurring. 11. I also clearly understood from the words “If acceptable… and within 24 hours”, that I can review the terms during the next 24 hours and in the event I do not find them acceptable, I do not need to proceed to sign, witness and return to the parties and the FWC Chambers, which will effectively lead to the conciliation settlement not occurring, after which I can request for the necessary certificate to proceed with my claim.”4 [24] The Respondent’s position is that a binding settlement had been reached and indicated that it objects to Mr Tripathi’s request for a certificate to be issued. Accordingly, Chambers issued Directions for both the Applicant and Respondent to file further final submissions and listed the matter for determination. The Question to Be Determined [25] The issue to be determined in this case is whether a binding contractual agreement was reached between Mr Tripathi and the Respondent at the end of the conciliation conference I conducted on 6 March 2024 to resolve Mr Tripathi’s general protections dispute. 2024 FWC 1173 5 [26] Directions were issued for the filing of material on 12 March 2024 and a hearing was conducted on Friday 22, March 2024 via video. Mr Tripathi represented himself and the Respondent was represented by Ms Peacock-Smith (Solicitor), who was granted leave. Material Filed [27] Mr Tripathi filed written submissions and supporting materials along with a witness statement in support and gave sworn evidence at the hearing. The Respondent filed written submissions. The Commission provided copies of all emails from my Chambers along with copies of the deeds provided to the parties (draft and final), and a recording of the Microsoft teams chat exchanges between Chambers and the parties during the conference. [28] All prepared and filed materials we distributed to the parties in a Digital Court Book (DCB) on Thursday, 21 March 2024 prior to the hearing. During the hearing, I sought views of the parties on the DCB being submitted into evidence in its entirety. There being no objections, the DCB was admitted into evidence. Statutory Provisions [29] Section 368(3) deals with the issuing of a certificate by the Commission in relation to an application made under s.365 of the Act. The sub-section reads: (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; and (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly. [30] Given the Respondent’s position is effectively that no further steps can be taken in relation to Mr Tripathi’s application because a binding settlement agreement was reached, s.587 of the Act, which deals with the Commission’s powers to dismiss applications, is also relevant to this case. Section 587 of the Act provides: 587 Dismissing applications (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. 2024 FWC 1173 6 Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [31] A Full Bench of the Commission has previously determined an application under s.365 can be dismissed pursuant to the general power in s.587(1) on the basis that the underlying dispute has been extinguished by a settlement agreement after the application was made5. Alternatively, the Commission can utilise its implied power to decline to act on an application where it fails for want of jurisdiction.6 Applicant’s Submissions [32] Mr Tripathi has prepared a clearly reasoned and articulated written submissions in support of his position, supported by a witness statement and his sworn evidence in the hearing. His principal arguments are that throughout the conference on 6 March 2024 he never intended to reach an agreement that was unfavourable to him and that he took from the words in the first “Official” email from the Commission that “If acceptable” and “within 24 hours” to expressly provide him an opportunity to consider any understanding reached in the conference and “opt out” should he consider it unacceptable. [33] It is Mr Tripathi’s evidence that by relying on these words it was in his mind and understanding that he could go back and review the terms discussed and if he decided to accept them, then he would be required to sign the deed and return it within 24 hours. Further, that any understanding reached during the conference was conditional up the terms being acceptable, and the deed being subject to the signatures of both parties. [34] On this basis, “with strengthened resolve and intentions”,7 Mr Tripathi acknowledges that he proposed some changes to the initial proposed deed to be provided by Chambers for the Respondent’s consideration and that at approximately 12.26pm, he received a further email from my Chambers also marked OFFICIAL with the message outlined in paragraph [14] above. 2024 FWC 1173 7 [35] After acknowledging receipt of this email, which he had some trouble locating, he submits that he went through its terms briefly and despite having concerns thought it was best to review them more fully in peace and quiet later. He then indicates, he had an exchange with my Chambers on the next steps which in his mind continued to be the opportunity to go back and review the document and, if he found it acceptable, to then sign it and return it. [36] Further, the Applicant submits that the purpose of the conclusion of the conference on 6 March 2024 was not clarified or explained to him and it appeared to him to be a reconfirmation of the discussed settlement terms for the benefit and understanding of the Commission. Consequently, he submits that he did not focus on each word of the Deed being read out to him during this part of the conference as he thought this was for the purpose of informing the Commission and further, that he understood he had 24 hours to consider if the terms were acceptable and sign the agreement if so. [37] He maintains that it was never in his intention to be bound by any agreement during the course of the conference and that he left the conference with a task to review the terms of the understanding reached and consider, within 24 hours, whether to be bound and enter the agreement. After the conference, he decided to sleep on the outcome and resolved to communicate his decision to opt-out of the settlement on the morning of 7 March 2024. In doing so he advised my Chambers of his decision to opt-out of the agreement and sought a certificate be issued. [38] On this basis, Mr Tripathi’s position is that it was the intention of all parties during the conference on 6 March 2024 for any agreement reached to be put in writing and signed for any binding settlement to occur. He submits this is supported by the actions of the parties in these proceedings and the communications between them, importantly the words in the OFFICIAL email from Chambers – “If acceptable”. [39] The Applicant’s position is that, when objectively viewed, these communications do not evince any intention to be immediately bound and asserts these communications along with the action of the Respondent in signing and “opting in” to the agreement and the Applicant “opting out” clearly indicate this matter falls within the third category of the circumstances identified by the High Court authority in Masters v Cameron8. One where the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. Respondent’s Submissions [40] The Respondent objects to the Applicant’s request that a certificate be issued on two alternative grounds. Principally, that a binding settlement was reached during the conciliation conference. In the alternative, that the Commission cannot be satisfied all reasonable attempts to resolve the dispute have been unsuccessful as required by s.368(3). [41] In support of the first proposition, the Respondent submits the facts in this matter fall squarely within the frame of a category 2 binding agreement as described by the High Court in Masters v Cameron9. Specifically, they submit: 2024 FWC 1173 8 “9. This case is not one where the parties agreed to further negotiate or refine the bargain that they had struck at the Conciliation Conference, subsequent to the Conciliation Conference. a. The express terms of the Deed were read out by Commissioner Connolly during the Conciliation Conference and were agreed to by both parties. b. Performance of certain obligations that were agreed to (namely, the release provided by the Applicant in exchange for the Respondents payment to him of agreed monies) was conditional on the execution of the Deed of Release reflecting, in writing, what had already been verbally agreed.”10 [42] Supporting this position, the Respondent asserts that the words “if acceptable” in the Commission’s email at 11.58am on 6 March 2024 do not carry the import that the Applicant suggests. It is their position that these words disclose little more than a request to consider the Deed provided to them, and if satisfied that it was consistent with the agreement reached to execute it. Further, that whether the parties intended to create an immediately binding contract during the Conciliation Conference cannot be determined by the Applicant’s “uncommunicated subjective motives or intentions” as the High Court identified in Ermogenous v Greek Orhtodox Community of SA Inc.11 [43] The Respondent submits that the proper approach in determining this issue is to consider what is “objectively…. conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened”. [44] Or, in other words, for the Commission to assess what a reasonable person in the position of the other party would have been led to believe as a result of Mr Tripathi’s words and conduct during the Conciliation Conference. On this basis, it is their position that the Commission’s recording of the Conciliation Conference is determinative. [45] The Respondent submits that, when viewed objectively, a reasonable person in the position of each party at the Conciliation Conference would have been led to believe that an immediately binding agreement had been reached at the conclusion of this conference as evidenced in the recording, with no further terms to be negotiated or agreed (with performance subject to execution of a written agreement).12 [46] With regards to its alternative position, the Respondent’s submission is that pursuant to s.368(3) of the Act, the Commission is required to be satisfied that “all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be unsuccessful”. On this basis, it is the Respondent’s position that in the present circumstances, when the parties were able to reach an agreement, even where the character of that agreement is now disputed, it cannot be reasonably open to the Commission to be satisfied the requirements of s.368(3) have been met. Consideration [47] A Full Bench of the Commission provided the following summary of the legal principles in relation to offer and acceptance of a settlement proposal in Subeg Singh v Sydney Trains:13 2024 FWC 1173 9 “The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement has been reached between Mr Singh and Sydney Trains. Chief Justice Bathurst of the New South Wales Supreme Court explain the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Ltd.14 “It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72’ 91 CLR 353 at 362. In such cases as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communication between the parties in their context and the parties dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easters (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said of wrote (at 334, 337).” … Ultimately the question is whether “a reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter- offer, or at any rate, not an unconditional acceptance of what was originally offered.15 Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.”16 [48] I have applied these principles to this matter and the question of the legal effect of the conclusion of the conciliation conference between Mr Tripathi and the Respondent on 6 March 2024 as follows: i) On 6 March 2024, Mr Tripathi and the Respondent participated in a conciliation convened before me further to Mr Tripathi’s s.365 general protections application pursuant to s.368 of the Act. I accept that Mr Tripathi commenced the conference with an intention not to agree unless terms were acceptable to him. ii) During the course of the conference, Mr Tripathi and the Respondent reached a common understanding of the basis of what an acceptable agreement between them to resolve the dispute could be and sought to document this agreement through the assistance of the Commission. This included payment of an agreed 2024 FWC 1173 10 amount and mutual release of the parties on agreed terms including the capacity of Mr Tripathi to proceed with an alleged claim for underpayment of salary. iii) At 11.58am (during the conference), my Chambers sent an email to both parties using the wording outlined in paragraph [13] above. iv) Attached to this email was copy of a draft deed prepared by my Chambers based on the common understanding reached between the parties for their consideration and review. At this point, I characterise that the parties had reached an ‘in principle agreement’17 on what the basis of a settlement between them could be and shared a common intention to reach an agreement, subject to drafting and preparing mutual acceptable written terms and conditions. v) Following this email, both parties exchanged correspondence with my Chambers providing their feedback and amendments, including in the chat of the Microsoft teams meeting.18 vi) At 12.26pm, my Chambers sent another email to both parties with the wording outlined in paragraph [14] above. vii) Attached to this email was the finalised deed that had been produced by my Chambers recording the amendments and intentions of both parties. At this point, I consider that the parties had reached and recorded in draft form the basis of an agreed settlement to the matters of dispute between them. At this stage, there was not however a binding agreement reached between them as neither party had expressed or affirmed their intention to execute the agreement. viii) At approximately 12.33pm, both parties returned to the shared meeting room on Microsoft Teams and my Chambers commenced a recording of the Conference. I rejoined the conference at approximately 12.35pm and commenced with the wording outlined in paragraph [17] above, ix) I then proceeded to recite, in its entirety, the words contained in the finalised deed. When I completed reading this deed, as outlined in paragraph [18] above, both parties agreed to the terms of settlement. x) I consider this to be a clear and unambiguous acceptance by Mr Tripathi of the terms of the agreement reached. Further, Mr Tripathi’s and Ms Mittal’s affirmative responses to my question asking them whether they agreed to these terms of settlement indicated an offer, acceptance, intention to create legal relations, consideration, certainty and capacity. Therefore, a binding contract was formed. [49] Mr Tripathi’s contention is that the words in the email from my Chambers stating, “If acceptable” and the requirement for parties to sign and execute the draft deed provided him a 2024 FWC 1173 11 clear and unambiguous opportunity to review the draft deed and opt out of any in principle agreement should he consider the terms unacceptable. [50] He maintains that throughout the conference he retained the understanding from these “Official words” that this would be an ongoing discussion. Further, that the significance of the conclusion of the conference, the commencement of an official recording and the words – “the parties have reached an agreement” and “Yes, I agree to these terms of settlement” were not explained to him. It is his position that when saying “Yes, I agree to these terms of settlement” it was never his intention to enter into a binding legal agreement. [51] I accept that Mr Tripathi may have genuinely thought this to be the case based on his submissions. However, based on the language used in the communications between the parties at the conclusion of the conference, I do not accept that there is any doubt that a definite decision to be bound by the agreement was made by both parties. As is well established by the above cited authorities, that is the legal test, not Mr Tripathi’s subjective understanding or intent. [52] There are many words that Mr Tripathi could have used in response to my question of him – Do you agree? For example, he could have stated his agreement would be subject to a final review or stated this was consistent with the discussions, either of which may have indicated a conditionality to his agreement. There was no necessity for him to state unequivocally – “Yes, I agree to these terms of settlement”. A reasonable person would not interpret these words as indicating Mr Tripathi was still considering whether to agree to the terms and sign and return them only if this was the case. [53] The above authorities confirm the context of the making of supposed agreements and conduct of the parties thereafter may also be relevant. The context is the conciliation conference itself and the terms of the agreement that were discussed during. The evidence demonstrates that the parties considered and communicated amendments to the proposed terms of settlement. [54] In particular, between the initial communication at 11.58am when my Chambers provided an initial copy of the proposed terms of the agreement the parties had approximately 28 minutes where the extract from the Microsoft teams chat exchanges indicated both parties considered and proposed amendments to the proposed terms. [55] Furthermore, the words of the email sent from my Chambers at 12.26pm indicated the Deed attached was the outcome of these discussions and a record of the Final agreement reached between the parties. There was no conditionality to this communication. I do not consider that a reasonable person would interpret this communication to be anything more than an indication the parties had reached a Final agreement in the terms attached. [56] I also consider the wording of the settlement agreement to be consistent with the existence of a binding agreement when Mr Tripathi verbally indicated he agreed to the terms, as opposed to only being capable to being created when the agreement was signed and returned. [57] Without revealing confidential terms provided for in the Deed, I have outlined an extract which is consistent with the Commission’s standard terms of settlement often utilised by parties below: 2024 FWC 1173 12 “The Applicant and the Respondent agree to fully and finally settle the matter on the following basis… … These terms of settlement may be executed in counterparts, meaning the execution will be complete when each party holds a copy of this Terms of Settlement signed by the other party, even though the signatures of both parties do not appear on the same copy.” [58] No where in the deed does it state, for example, that the settlement will take effect, become legally binding or commence operating when it has been signed by both parties. To the contrary, the wording above refers to “the execution will be complete”. This indicates signing is part of the settlement terms, as opposed to indicating it is a completion of the signing process that creates the binding settlement. CONCLUSION [59] Therefore, I find that Mr Tripathi and Tricor reached a binding settlement agreement to resolve Mr Tripathi’s general protections application on 6 March 2024. [60] As a result, I have determined to dismiss Mr Tripathi’s general protections application pursuant to s.587(1) of the Act on the basis that the dispute has been extinguished by a settlement agreement after the application was made. Consequently, the Commission no longer possesses the jurisdiction to deal with this matter any further. [61] In the alternative, I would order the dismissal of Mr Tripathi’s application using the implied power for the Commission to decline to act on an application where it fails for want of jurisdiction. [62] As a practical consequence of this decision, Tricor Services should proceed as if Mr Tripathi has signed the settlement agreement and immediately arrange for the payment of the agreed term as provided in the binding agreement. For the reason that requiring Mr Tripathi to file a notice of discontinuance is not necessary in circumstances where the application has been dismissed. [63] An order dismissing Mr Tripathi’s application pursuant to s.587(1) of the Act will be issued in conjunction with this decision.19 2024 FWC 1173 13 COMMISSIONER Appearances: Mr A. Tripathi as the Applicant. Ms K. Peacock-Smith on behalf of the Respondent. Hearing details: 2024. Melbourne (via video). 22 March. Printed by authority of the Commonwealth Government Printer <PR774557> 1 Commission Documents, Digital Court Book (DCB) page 78. 2 Ibid. 3 Ibid, page 70. 4 Witness Statement of Abhilash Tripathi at [8]-[11], DCB pages 8 – 9. 5 Bradley William Lewer v Australian Postal Corporation [2023] FWCFB 56 at [55]. 6 Ibid at [57]. 7 Witness Statement of Abhilash Tripathi at [13], DCB page 9. 8 (1954) 91 CLR 353. 9 Ibid at [360] (per Dixon CJ, McTiernan and Kitto JJ). 10 Respondent’s Outline of Submission at [9], DCB page 28. 11 (2002) 209 CLR 95 at [25] (per Gaudron, McHugh, Hayne and Callinan JJ). 12 Respondent’s Outline of Submissions at [30], DCB page 31. 13 [2017] FWCFB 4562 at [45] - [47]. 14 Singh at [46] citing Pavlovic [2015] NSWCA 313 (Pavlovic) at [15]. 15 Singh at [47] citing Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [76], applying Carter v Hyde (1923) 33 CLR 115. 16 Singh at [47] citing Redowood at [84]. 17 See Singh at [52]. 18 Commission Documents, DCB pages 80 - 81. 19 PR774558.