Annabel Watson v Transport Accident Commission [2026] FWC 448

1 Fair Work Act 2009 s.394—Unfair dismissal Annabel Watson v Transport Accident Commission (C2025/9064) DEPUTY PRESIDENT CLANCY MELBOURNE, 12 FEBRUARY 2026 Application made pursuant to s.365 - no dismissal - Application dismissed. [1] Ms Annabel Watson has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by the Transport Accident Commission (Respondent) in contravention of Part 3-1 of the Act. Section 365 of the Act provides that a person is only able to apply for the Commission to deal with a dispute if the person “has been dismissed” and it is alleged that the dismissal involved a contravention of Part 3-1 of the Act. The Respondent has raised a jurisdictional objection to Ms Watson’s application on the basis that Ms Watson was not dismissed. [2] I conducted a determinative conference at which Ms Watson appeared and Ms Katherine Ryan, Senior People Culture and Engagement Business Partner for the Respondent, gave evidence. [3] In Coles Supply Chain Pty Ltd v Milford,1 the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows: “To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply.”2 [4] As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Ms Watson has been dismissed by the Respondent before the Commission can exercise powers under s.368 to deal with a dispute about whether there was a dismissal in contravention of the general protections provisions set out in the Act. Section 12 of the Act defines what is meant by the term “dismissed” in the Act by stating “see section 386”. Section 386(1) of the Act relevantly defines the meaning of “dismissed” as follows: “386 Meaning of dismissed [2026] FWC 448 DECISION -- 1 of 11 -- [2026] FWC 448 2 (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.” [5] While s.386 appears within Part 3-2 of the Act, the definition is applied generally, including when determining whether a person “has been dismissed” for the purposes of s.365(a).3 Factual background [6] Ms Watson commenced employment with the Respondent in June 2020 and from 19 April 2022 until 22 May 2023, took a period of parental leave. On her return, Ms Watson was transferred into the role of Provider Specialist. She initially reported to Mr Will Butters and gave an account of him not being aligned with her when it came to working hours and work/life balance, the work she was to perform and whether she was to be considered for competency 3 (the performance-based promotion pathway). By the commencement of 2024, Ms Watson was outlining a series of challenges she was experiencing and concerns she held. She was aggrieved that her request to move to a full-time contract had been denied. In time, Ms Watson began reporting to Ms Jemma Roberston, the Respondent’s Team Manager-partnerships and performance. Ms Watson asserted that a recommendation from her general practitioner that she be redeployed to another area of the business due to health reasons was not accommodated and that when she again requested support to apply for the competency 3 promotion, she was not supported by her senior manager, Ms Angela Sormaz. Ms Watson outlined a series of interactions with management in June 2024 which she says had a negative impact on her. She claims her mental health was impacted and that her general practitioner supported her taking a period of personal leave. [7] The Respondent asserts that there were discussions between Ms Watson and Ms Robertson between April-June 2024 that centred on the areas of Ms Watson’s performance that the Respondent considered to be in need of improvement, such as her timeliness, her ability to understand situations and effectively deliver and the inconsistent quality of her work. Ms Ryan said she was aware that Ms Robertson had intended to have further discussions with Ms Watson about her performance and would have considered, if necessary, implementing a performance improvement plan (PIP). Ms Ryan said that these further discussions did not occur because Ms Watson took an extended period of leave. [8] Ms Watson said that she notified the Respondent’s Health Safety and Wellbeing (HSW) team of the incidents that had resulted in her needing time away from work during July 2024 and that her intention was to prioritise her recovery. Ms Watson sent an email to Ms Roberston on 1 August 2024 which attached a letter requesting 12 months leave without pay (LWOP). This email included the text “thank you for your patience over these past few days...as well as your offers of support over the last month and prior” and the attached letter stated: “I hope this letter finds you well. -- 2 of 11 -- [2026] FWC 448 3 As you are aware, I have been on personal leave since 9 July 2024. The reason for this was to focus on my personal health and wellbeing, with the support of my General Practitioner and family. After careful consideration, I am formally requesting a further 12-month period of leave without pay as per the TAC’s Leave Without Pay Procedure. My proposed extended leave period is from August 2024 to September 2025 (dates to be confirmed upon consultation). Currently, I have annual leave remaining, which would be exhausted prior to commencing a period of leave without pay. I am committed to ensuring a smooth transition and would like to work with yourself and the leadership team to establish a suitable date for this leave to commence, within August that minimises any disruption to the operations of the Partnerships and Performance branch. I am prepared to assist in any way necessary to facilitate a seamless handover of my portfolio, including returning to work for this purpose. Thank you for your understanding and support in this matter.” [9] Ms Roberston responded by email dated 6 August 2025, in which she stated: “Dear Annabel, Thank you for taking the time to speak with me this afternoon. I acknowledge the health and wellbeing challenges you’ve shared you’ve been experiencing recently and you’ve taken time away from work to prioritise your health. It is important to look after yourself and I hope that you’re feeling better and recovering well. As discussed, I have received your email request dated 1 August 2024, to take 12 months Leave Without Pay (LWOP), per the TAC’s Leave Without Pay procedure (attached for ease reference). I’m pleased to confirm that your request for 12 months LWOP can be accommodated on this occasion. Further to your last email and our discussion this afternoon, I have proposed the below dates to accommodate the commencement of your LWOP: Friday 5th July – Flex Leave (1 day) Tuesday 9th July to Friday 12th July and Thursday 1st August* to Friday 2nd August* (*pending medical certificate) – Personal Leave (6 days) Tuesday 6th August – Wednesday 18th September – Annual Leave (26 days) Thursday 19th September 2024 – Thursday 18th September 2025 – Leave Without Pay (LWOP) (12 months) Can you please confirm that I’ve captured these dates correctly, so I can submit the leave into MyAurion on your behalf?” -- 3 of 11 -- [2026] FWC 448 4 [10] Ms Roberston also outlined additional information, which included: 1) All HSW supports would remain available to her for the duration of her LWOP, including access to supports via the Employee Assistance Program (EAP) and return to work supports upon her return from LWOP (if needed). 2) She could contact Ms Roberstson, HSW and/or People Culture & Engagement at any stage during the LWOP. 3) She was not permitted to engage in any paid or voluntary employment, without prior written approval whilst employed with the TAC and was asked to refer to the conflict of Interest (COI) policy (which was attached). 4) The Respondent would need to backfill her role for the duration of her leave period and if her circumstances changed and she would like to return earlier, this might not be able to be accommodated due to workforce planning constraints. 5) She would need to return the equipment of the Respondent she held (laptop, mobile phone etc) before commencing her LWOP and was therefore requested to nominate a suitable time and date before 19 September 2024 so that this could be coordinated. 6) She was requested to make contact four weeks before the planned return to work date of Thursday 18th September 2025, as per the LWOP Procedure. 7) While the Respondent had a preference to reach out to her “every now and then” to check-in and see how she was going, she could let Ms Roberstson know if she preferred that this not occur. 8) She would be advised of any significant work-related updates. [11] Ms Watson claims that in a telephone conversation on 6 August 2024, she advised Ms Robertson that in addition to her intention to recover, she was, for financial reasons, also looking for alternative work that she could perform during her LWOP and that in reply, Ms Robertson had said that the Respondent would not stand in her way if she pursued employment. Ms Roberston received a COI form from Ms Watson, through which Ms Watson sought approval to commence a fixed term role at WorkSafe Victoria (WSV). The Respondent claims that this was received without prior notice and asserts that Ms Robertson expressed confusion at the time because the key accountabilities for the WSV role were not dissimilar to the role Ms Watson held with the Respondent and yet Ms Watson had advised that she was not fit to perform them for the Respondent. [12] Ms Watson gave an account of a telephone conversation she said she had with Ms Robertson on 22 August 2024. She claims Ms Robertson was aggressive, accusatory and offensive and had suggested that the Respondent’s leadership group was of the opinion that she had been dishonest about her mental health because it had been the basis upon which they had approved her LWOP and yet she was now informing them that she would be working elsewhere. Ms Watson claims that she had never advised the Respondent that she was unable to work in any capacity but rather, that she was unable to work in her team at the Respondent on her general practitioner’s advice, due to its culture and what she had been experiencing. [13] Ms Sormaz replied to the COI form on behalf of the Respondent with a letter dated 30 August 2024. She outlined, from the Respondent’s perspective, the context in which the LWOP was received and approved. Specifically, Ms Sormaz stated that the approval was based on Ms Watson’s request for a break from working in order to focus on restoring her health and wellbeing. Ms Sormaz expressed surprise at having received the COI form, opined that some -- 4 of 11 -- [2026] FWC 448 5 prior notice would have been appreciated and suggested that that the trust and transparency in their employment relationship was not at the optimal level. Ms Sormaz continued by foreshadowing that the Respondent desired to have dialogue about a number of matters. Firstly, Ms Sormaz outlined the “respectful request” that Ms Watson connect with her team manager 4 weeks prior to returning to working at the Respondent in order to have a conversation and better understand whether there were any further opportunities to rebuild the trust and transparency reasonably expected to exist between a manager and an employee. Secondly, referencing “multiple feedback conversations” prior to Ms Watson going on personal leave about areas in which the Respondent considered Ms Watson needed to improve, Ms Sormaz outlined the expectation that performance management process would resume, and indicated that clear expectations of performance levels would be clarified upon Ms Watson’s return. Ms Sormaz foreshadowed that if the same aspects of Ms Watson’s performance required improvement within 4-8 weeks, there would be a discussion about utilising more formal channels, such as a PIP, to support her “to deliver the expectations of the role”. [14] Ms Sormaz also confirmed that all assets and devices of the Respondent were to be returned prior to Ms Watson commencing at WSV and outlined the requirement that she acknowledge the policies and procedures of the Respondent relevant to her employment contract and her request to work during her LWOP. Ms Sormaz concluded by stating: “Annabel, it is hoped that the break and variety you have sought will provide the benefits you are seeking. Please do reach out should there be any further questions or discussions you would like to have with myself or other relevant contacts within the TAC As we have been noting through various conversations, we would continue to encourage you to reach out to TAC's employee assistance program for any other wellbeing supports on [phone number]. We look forward to your return to work at TAC on 19 September 2025 and meeting with you by 22 August 2025 to discuss the arrangements for your return to work.” [15] On 2 September 2024, Ms Roberston approved the COI form and thereafter, while on her LWOP, Ms Watson commenced employment with WSV. On 10 October 2024, Ms Watson returned the Respondent’s devices and assets. She said she felt uncomfortable and intimidated when doing so. [16] In the latter part of October 2024, it emerged that Ms Watson had been overpaid the sum of $6,505.50 by the Respondent during the period 21 September 2024 – 19 October 2024. Ms Watson subsequently requested a waiver of the overpayment, citing extenuating circumstances. Ms Ryan stated that the Respondent’s Overpayment policy provides that it is the shared responsibility of the Respondent and the employee in question to rectify overpayments in a timely manner. A repayment plan was arrived at. It appears that this was largely adhered to but the Respondent claims Ms Watson ceased making repayments in June 2025, when the outstanding balance to be paid was $657.00. Ms Ryan stated that the remaining monies were deducted from Ms Watson’s Corporate Incentive Program payment for FY25, consistent with the Respondent’s Overpayment policy. -- 5 of 11 -- [2026] FWC 448 6 [17] In a letter dated 20 June 2025, Ms Watson wrote to Ms Ryan stating her intention “to seek a restorative resolution and a meeting to discuss a separation agreement that brings a closure to my employment with the TAC in a respectful and constructive manner.” Through this letter, Ms Watson contended that her LWOP had followed “a sustained period of psychological distress at work” which, on the recommendation of her general practitioner, had necessitated the need for her to take personal leave and culminated in her making the “difficult but responsible decision to step away from the organisation for an extended period of unpaid leave” so that she could prioritise her health. Ms Watson complained of thereafter having been subjected to inappropriate, retaliatory, formal correspondence having submitted the COI form. She stated that this had left her feeling intimidated, isolated and experiencing further substantial deterioration. She claimed that the correspondence and other matters had required her to engage with the Respondent during the first 6 months of her LWOP and that this had resulted in personal harm. Ms Watson continued by stating that with no need to be in contact with the Respondent during the 4 months that followed, she’d had time and space to reflect and had concluded that a return to her role with the Respondent was not something she had the “health capacity” to do. Ms Watson outlined that she sought resolution through a confidential separation agreement which recognised what she had experienced and included financial acknowledgment of “the avoidable impact this has had on my health and life circumstances.” Ms Watson stated that it was not her intention to pursue litigation or a formal grievance process, but rather to finalise her relationship with the Respondent “in a way that is respectful, confidential, and in the best interest of all parties.” Ms Watson concluded by requesting a meeting to discuss her proposal and outlined that once resolution was reached, she would formally resign and ensure a cooperative conclusion to her employment. [18] The Respondent responded in letter dated 15 July 2025 from Ms Emma Zahra (General Manager – Providers, Markets and Commercial). This letter included the observations that in meetings with Ms Cibele O’Sullivan on 26 June 2025 and 1 July 2025, and in subsequent correspondence, Ms Watson had stated that she did not want to engage in any further discussions where she might need to repeat her reasons for requesting a separation agreement. The Respondent confirmed that it disagreed with many of Ms Watson’s assertions regarding its culture and leadership behaviours and asserted that its records demonstrated that each time she had raised a workplace concern, it was comprehensively addressed. The letter then continued by outlining: • “Despite the efforts we have made to support you, it is clear that the employment relationship has irrevocably broken down.” • That in response to Ms Watson’s request, the Respondent was prepared to offer the equivalent of 4 weeks of pay, attaching a separation deed for Ms Watson’s review and signature. • That for additional assistance, counselling or support, Ms Watson could contact the Respondent’s EAP provider. • That Ms Watson could also contact Ms Zahra or Ms Ryan with any questions. [19] Ms Watson replied through a letter to Ms Zahra, sent via email on 16 July 2025. She outlined some of her experiences, which she contended were consistent with themes that had -- 6 of 11 -- [2026] FWC 448 7 emerged from the Respondent’s People Matter surveys, Employee Opinion survey and an organisational Culture Survey. She also claimed that the letter from Ms Sormaz had eroded trust and significantly worsened her health. She raised the overpayment issue and the return of the Respondent’s devices and assets. Ms Watson then outlined a claim for 8 months’ salary, relying on the context she had outlined, the exhausting of her leave entitlements and the assertion that she had required ongoing medical and psychiatric care. [20] Ms Zahra outlined the response of the Respondent in a letter dated 17 July 2025, which included that: 1) The Respondent acknowledged the feelings Ms Watson had expressed but disagreed with many of the assertions she had made about the culture and leadership behaviours, maintaining that each time Ms Watson had raised a concern in the workplace, it was comprehensively addressed. 2) If Ms Watson wanted to pursue other avenues for compensation related to any injuries she believed were work related, she could contact the senior HSW partner for further information about lodging a WorkCover claim. 3) The Respondent would not be offering an increase above the equivalent of four weeks salary. 4) Irrespective of Ms Watson’s decision with regards to accepting the Separation Deed, if it was her intention to resign from the Respondent, she was offered an exit interview “or simply a space to have a further discussion.” 5) The Respondent remained committed to taking all reasonable steps in working towards a constructive and respectful resolution. 6) For additional assistance, counselling or support, Ms Watson could contact the Respondent’s EAP provider and for any questions, she could contact Ms Zahra or Ms Ryan. [21] On 22 July 2025, Ms Watson replied by email stating that she would not be accepting the Separation Deed. She acknowledged the time that had been taken to consider her request but expressed disappointment that resolution could not be reached. [22] On 11 August 2025, Ms Sormaz sent an email to Ms Watson which stated: “I hope you're well and that the past year has been rewarding both professionally and personally. As your 12 month unpaid leave period is nearing its end, I wanted to reach out and reconnect. I’d love to catch up and talk with you to ensure we are well planned for your return to working at the TAC, which we have scheduled for the 22nd September. It would be great to discuss any support you might need as you transition back. There have been some changes in the Provider, Markets & Commercial Group and I’d like to make sure you’re across those in anticipation of your return. -- 7 of 11 -- [2026] FWC 448 8 Would you be available for a quick meeting or call sometime this week or next? Please let me know what works best for you. Looking forward to hearing from you.” [23] Ms Watson did not respond to this email but on 19 August 2025, she sent an email to Ms Zahra and Ms Ryan, which stated: “Please find attached my formal letter of resignation from my role as Provider Specialist, effective 19 August 2025. I also wish to note that due to not having reached a resolution to my concerns, I have obtained independent advice in relation to my employment and will continue to pursue appropriate avenues separately. Thank you for acknowledging receipt of this correspondence. Please don’t hesitate to contact me if you require any further information.” [24] The attached letter of resignation stated “I am writing to formally resign from my position as Provider Specialist at the Transport Accident Commission, effective 19 August 2025. Please accept this letter as formal notification of my resignation. Thank you for the opportunity to work with the organisation.” Consideration [25] If Ms Watson was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her s.365 application. More specifically, if Ms Watson’ employment was not terminated at the initiative of the Respondent, or if my finding is that she was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for her to pursue her s.365 application. [26] The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli4 (Tavassoli) considered the legal principles pertaining to s.386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”,5 the Full Bench stated: “[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: -- 8 of 11 -- [2026] FWC 448 9 (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” [27] I am not persuaded, and nor was it seriously submitted, that the Respondent initiated the termination of Ms Watson’s employment by notifying her that she was dismissed but I have considered s.386(1)(a) in the manner articulated in Tavassoli. That is to say, judged objectively, did Ms Watson not intend to resign her employment on 19 August 2025? I consider the answer to this question is ‘no’ for the following reasons: a) Emailing the Respondent on 19 August 2025 was not a ‘heat of the moment’ action by Ms Watson – her resignation was tendered following nearly 12 months of LWOP, an 8- week period of correspondence between the parties initiated by Ms Watson in which she raised the notions of a “restorative resolution”, a “separation agreement” and “closure” to her employment “in a respectful and constructive manner” and two meetings; b) The resignation was in writing; c) The Applicant had been unhappy in her employment for an extended period of time and had spent four months during her LWOP reflecting on her position; and d) The Applicant had obtained independent advice. [28] As to s.386(1)(b), I have also adopted the principles outlined by the Full Bench in Tavassoli set out above and have considered: a) Whether the Respondent engaged in conduct intended to bring the employment to an end; and -- 9 of 11 -- [2026] FWC 448 10 b) Was the termination of the Applicant’s employment the probable result of the Respondent’s conduct such that she had no effective or real choice but to resign? [29] Having regard to the factual background I have outlined above, I am not satisfied the Respondent engaged in conduct intended to bring the employment to an end. Firstly, while the Respondent had formed the view during the first half of 2024 that Ms Watson’s performance was in need of improvement, it did not proceed to sanction her and, instead, was proposing to manage the issues through a PIP. While Ms Watson claims the PIP proposal was a retaliatory move in response to her having made a formal complaint, I consider the Respondent’s proposal was a completely orthodox exercise of managerial prerogative. Secondly, the Respondent approved Ms Watson’s application for LWOP, endorsing the need for Ms Watson to look after herself and expressing the hope that she was feeling better and recovering well. Thirdly, the arrangements associated with Ms Watson’s LWOP that were put in place by the Respondent (outlined in [10] above) were practical, supportive and appropriate. Fourthly, I do not consider the reactions of the Respondent’s employees to Ms Watson’s application for approval to commence a fixed term role at WSV during her LWOP constituted conduct intended to bring her employment to an end. The expressions of surprise and confusion were spontaneous reactions and any mild incredulity was quickly overcome, with the response moving to practicalities and then to expressions of encouragement and support. Fifthly, I consider there was nothing inappropriate regarding the request for the return of the Respondent’s assets and devices. The Respondent was very clear about this from the outset and Ms Watson had been given an early opportunity to nominate a suitable time and date so that this could be coordinated. Sixthly, while overpayments are unfortunate and can be untidy to manage, there was an organisational policy in place to deal with them and Ms Watson had the opportunity to make repayment by instalment. Finally, the notion of there being a mutually agreed separation was first raised by Ms Watson and the Respondent engaged in the dialogue and correspondence carefully and respectfully. [30] I have noted Ms Watson’s reliance on Ms Zahra’s observation in the letter dated 15 July 2025 that “Despite the efforts we have made to support you, it is clear that the employment relationship has irrevocably broken down.” This comment needs to be viewed in context. It was responsive, made after Ms Watson’s letter dated 20 June 2025 (see above at [17]). I have also noted Ms Zahra’s subsequent letter to Ms Watson, dated 17 July 2025. This followed the meetings and correspondence regarding a possible mutually agreed separation, was courteous and professional and it identified where Ms Watson could direct any questions and find support. The email of Ms Sormaz that followed, on 11 August 2025, was positive in tone and forward looking. This email very much assumed Ms Watson’s return to work. In summary, the Respondent had granted Ms Watson LWOP, acceded to her request to work elsewhere during it, managed the arrangements appropriately and after professional and courteous dialogue about a mutually agreed separation, gave every indication that it aspired, moving forward, for the employment relationship to be positive and productive. Ms Watson herself acknowledged the time that had been taken by the Respondent to consider her separation request. At all times, she had the opportunity to resume her work for the Respondent. However, after taking time to consider her position and obtain professional advice, Ms Watson decided to resign from her employment in order to “continue to pursue appropriate avenues separately”. It follows that I am not satisfied that the termination of Ms Watson’s employment was the probable result of the Respondent’s conduct, such that she had no effective or real choice but to resign. -- 10 of 11 -- [2026] FWC 448 11 Conclusion [31] I have concluded that in this case there was no dismissal within the meaning of s.386 of the Act because I am satisfied there was no termination of Ms Watson’s employment on the Respondent’s initiative and nor have I been persuaded that Ms Watson was forced to resign because of conduct or a course of conduct engaged in by the Respondent. The effect of my conclusion that Ms Watson was not dismissed is that her application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Ms Watson pursuant to s.365 of the Act is dismissed. Given this conclusion, I will not issue an Order. DEPUTY PRESIDENT Appearances: A Watson on her own behalf. K Shepherd on behalf of Transport Accident Commission. Hearing details: 2026. Melbourne (using Microsoft Teams). February 3. Printed by authority of the Commonwealth Government Printer <PR796704> 1 [2020] FCAFC 152. 2 Ibid at [67]. 3 See for example Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [14]-[15] and Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [12]. 4 [2017] FWCFB 3941. 5 Ibid at [35]. -- 11 of 11 --