Allan Hinds v Barcoo Retirement Village Incorporated [2017] FWC 5122

1 Fair Work Act 2009 s.394—Unfair dismissal Allan Hinds v Barcoo Retirement Village Incorporated (U2017/6976) COMMISSIONER SIMPSON BRISBANE, 4 OCTOBER 2017 Application for an unfair dismissal remedy. [1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Allan Hinds who alleges that the termination of his employment with Barcoo Retirement Village Incorporated (Barcoo) was unfair. At the conclusion of a determinative conference conducted this morning, I issued an oral decision dismissing the application giving brief oral reasons, and indicating I would publish more fulsome written reasons later in the day. Below are those reasons. [2] For the purpose of this decision, any reference to “the applicant” is a reference to the applicant in the substantive matter, and any reference to “the respondent” is a reference to the respondent in the substantive matter. [3] The application was filed on 29 June 2017. Mr Hinds submitted he commenced employment at Barcoo on 19 August 2013 as a Gardener/Handyman. Mr Hinds submitted that on 20 June 2017 he was hand delivered a letter explaining his contract would be terminated effective immediately. Mr Hinds claims his dismissal was unfair because he did not receive any warnings about his performance not afforded an opportunity to discuss reasons with the committee. [4] On 10 July 2017 an Employer Response to the unfair dismissal application was filed. In the response Barcoo raised a jurisdictional objection that Mr Hinds was not an employee and was engaged pursuant to a contract for service. [5] The file indicates conciliation was to be conducted on 18 July and the matter did not settle. Directions were issued following a directions hearing on 10 August for the filing of material. The parties agreed to participate in a member assisted conciliation conference on 4 September however again the matter did not settle. The directions for filing material were amended. [6] Affidavits of Lorelei Kiernan1, and Peter William Skewes2 dated 18 August 2017 were filed for the respondent in respect of its jurisdictional objection that the applicant was not an employee. [2017] FWC 5122 DECISION -- 1 of 11 -- [2017] FWC 5122 2 [7] Mr Hinds filed a two page document in the form of a statement3 which he adopted and was admitted in evidence in respective of both the substantive and jurisdictional issues on 7 September. [8] Affidavits of Peter William Skewes4, Colin Gordon Tanzer and Robert Owen Stockwell dated 20 September 2017 were filed for the respondent in relation to the jurisdictional and substantive matters along with a brief submission. For reasons set out below Mr Tanzer and Mr Stockwell were not required to give evidence and their Affidavits are not relied upon in this decision. [9] It should be noted that Barcoo says it does not employ any employees. In the event Barcoo’s jurisdictional objection concerning whether Mr Hinds was an employee fails, then the Small Business Fair Dismissal Code would apply. [10] The parties consented to the matter proceeding as a determinative conference. Ms Mardi Noonan, Mr Hinds’ wife, also gave sworn evidence in support of Mr Hinds. Background [11] Mr Hinds affirmed that Hinzy’s Handy Help is an ASIC registered business name (ABN 23832737692) that has been established since 1 March 2001, and is operated by Mr Hinds.5 [12] Mr Hinds said Hinzy’s Handy Help provides gardening, tree lopping, gutter cleaning, house cleaning, bond cleaning and minor maintenance and repair services for home and property clients.6 [13] Mr Hinds said that on 10 May 2013 the Barcoo Independent newspaper contained a ‘Position Vacant’ advertisement from the Barcoo Retirement Village Committee seeking a Gardener/Handyman. The advertisement stated the pay rate would be negotiated and the Gardener/Handyman’s own equipment was to be supplied. [14] Mr Hinds said that on 16 May 2013 he submitted a letter of application for the position of Gardener/Handyman to the Barcoo Retirement Village Committee and included his rates schedule. Mr Hinds said he received a letter from the Committee on 12 August thanking him for his application and offering him the position of Gardener/Handyman.7 [15] Mr Hinds said he accepted the job and then worked for Barcoo from 15 August 2013 until 20 June 2017. [16] Mr Hinds said that he acknowledged that he originally accepted the job as a contractor but did not receive a signed contract or job description.8 [17] Mr Hinds said on 20 June 2017 he received a hand delivered letter from the Barcoo Retirement Village Committee stating his contract was terminated effective immediately without reasons provided in the letter.9 -- 2 of 11 -- [2017] FWC 5122 3 [18] Mr Hinds said he was unaware of any complaints written or otherwise in the lead up to 20 June or since that time regarding his performance, and that he received no warning notice that the committee was unsatisfied with his work.10 [19] Mr Hinds said he was required to perform 30 to 40 hours per week at the Barcoo Retirement Village for nearly four years, more than 75% of his income was generated by his employment at the Barcoo Retirement Village, and “as a sole trader” the position was his primary income source.11 [20] Mr Hinds said he should have been regarded as an employee for tax and superannuation purposes. Oddly, Mr Hinds stated that: “I am fully aware that I was a contractor and didn’t feel the need to contest this during my employment until I was terminated without explanation.”12 [21] Ms Kiernan’s Affidavit was admitted and I did not require her to give evidence on the basis that Mr Hinds did not contest the contents of her Affidavit. In her evidence Ms Kiernan said she is currently contracted to the respondent as the Village Manager and Secretary, and she received invoices from Hinzy’s Handy Help at the end of each fortnight, and sometimes extended to three weeks listing all the jobs and work he had done and including GST, and he was paid upon receipt of the invoice.13 [22] Ms Kiernan said that Barcoo only paid on receipt of the invoice and there was no set date for payment. Ms Kiernan said she believed if Mr Hinds was ill or unable to undertake the gardening duties, he would engage friends to cover for him and he billed Barcoo as if he had undertaken the work.14 Ms Noonan clarified that if Mr Hinds could not perform the work himself, he did delegate it to others however those persons were not paid wages but were paid in kind using a barter system. [23] Ms Kiernan said Mr Hinds has never been paid superannuation, holiday or sick pay. Ms Kiernan said at the commencement of his duties he was paid $45 per hour including GST, and has always issued invoices in the name of Hinzy’s Handy Help and the rate of pay per hour has never changed.15 [24] Mr Peter Skewes, the current President of Barcoo, and also a practicing lawyer, said Mr Hinds was engaged a contractor. Mr Skewes said the appointment was on a week to week basis and not for a fixed term. Mr Skewes said the hours which Mr Hinds was to work were to be limited to 40 hours in the summer months and 35 in the winter months. Mr Hinds was to be paid through his business Hinzy’s Handy Help $45 per hour including GST for his services. Mr Skewes attached to his Affidavit of 18 August a copy of one of the Tax Invoices.16 [25] Mr Skewes said that Mr Hinds worked basically unsupervised and worked his allocated hours when he wanted to as his hours were not set.17 Mr Hinds accepted that he determined when the various duties he performed were performed, however Ms Noonan also said that if work Mr Hinds performed required additional costs to be incurred, such as maintenance or repair work he needed to get authority to make purchases to perform such maintenance or repair. -- 3 of 11 -- [2017] FWC 5122 4 [26] Mr Skewes said that Mr Hinds provided his own tray back vehicle and trailer for removal of garden waste and also provided his own lawn mower and whipper snipper. Mr Skewes also said Mr Hinds supplied and believed paid wages to other people when he was unable to attend Barcoo. Mr Skewes believed that Bradley Arthur Dickens, Ross Spendlove and Barry Jones worked on behalf of Hinzy’s Handy Help at Barcoo. Mr Skewes attached a document setting out the current ABN details of Hinzy’s Handy Help18 to his Affidavit of 18 August. [27] Mr Hinds accepted that he provided his own his own vehicle, several lawn mowers, trailers and general garden equipment including chainsaws, hedge trimmers and an array of carpentry tools. Mr Skewes said that he was aware that Mr Hinds advertises his gardening and handyman services as a contractor to the public of Blackall and provides such services.19 Ms Noonan and Ms Hinds accepted that they had done some advertising of his business in the past but advertising was now confined to sponsorships at sporting clubs. [28] Mr Skewes said that he was the person who delivered the termination of contract notice to Mr Hinds on 20 June 2017 and did so at the direction of the management committee consisting of five persons. Mr Skewes said that the termination of Mr Hinds’ contract followed a series of incidents which caused the committee great concern, including that Mr Hinds became arrogant, and would not accept direction. Mr Skewes said he arranged for a meeting with Mr Hinds on 24 May 201720 following concerns expressed by the committee over Mr Hinds’ performance. [29] Mr Skewes set out a number of issues raised at the meeting in his statement, including the cost of Mr Hinds’ contract and claimed he asked Mr Hinds to come up with solutions. Mr Skewes said he made some suggestions himself. Mr Skewes said at the end of the meeting it was decided that they would have another meeting at some stage in the future.21 [30] Mr Skewes said that on Wednesday 7 June 2017 Mr Hinds visited his office and asked if he had time to meet with him. Mr Skewes said he replied that he was busy but he could meet on Friday. Mr Skewes said that Mr Hinds informed him that as “we” had cut his hours, he wouldn’t be available to consult with Mr Skewes on the Friday, and accordingly could Mr Skewes arrange another time.22 Mr Skewes said the following day he received an email which he attached to his second Affidavit.23 [31] The email is from Mardi Noonan, Mr Hinds’ wife to Mr Skewes. It sets out the costings for summer and winter. The email includes the following: “I did a rough average over several months [sic] invoices and we generally earn around $2760 per fortnight. We pay our own taxes, super, sick leave, holiday pay, long service leave, and wages. We supply all our own equipment and tools. We supply and pay wages for people to assist us when we are away or unable to be at the village. We submit invoices, collect our cheque and wait for funds to clear. I don’t mean to come across aggressive as that it not my intention. I just would like all parties to know where we are at and to provide a clear view of our situation.” [32] Mr Skewes drew attention to Ms Noonan’s admission that the other people had worked for Mr Hinds at the village.24 -- 4 of 11 -- [2017] FWC 5122 5 [33] Mr Skewes also gave evidence that members of the committee had wanted the contract terminated immediately when Mr Hinds had been charged with two driving offences; however Mr Skewes said that as a lawyer he felt Mr Hinds was entitled to presumption of innocence. Mr Skewes said the reason for the decision to terminate the contract was that committee members were unhappy with Mr Hinds’ performance and his responses to Mr Skewes efforts to have discussions with Mr Hinds.25 Mr Skewes said the Secretary of the association had informed him that at the commencement of the contract Mr Hinds received a role description and he attached to his Affidavit a copy of the document.26 Jurisdictional Issue – Not an employee [34] Barcoo object on the jurisdictional ground that Mr Hinds was not an employee, and had always been engaged as an independent contractor. [35] Barcoo had raised in its submissions that Mr Hinds on a number of occasions conceded he was a contractor, including in the initial application, and at paragraphs 9 and 18 of his 7 September statement. When I queried Mr Hinds and Ms Noonan on this, their responses were to the effect that they accept they believed Mr Hinds was a contractor when working at the Retirement Village, but have received advice that he was an employee and the arrangement was a sham. [36] The Full Bench decision in Kimber v Western Auger Drilling Pty Ltd27 addresses the factors/indicia this Commission needs to consider in assessing whether an Applicant was an employee or an independent contractor during the relevant period. The Full Bench endorsed the general approach to distinguishing employees and independent contractors provided in Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario28 which follows: “(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship. (2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract. (3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract. (4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the -- 5 of 11 -- [2017] FWC 5122 6 particular context. For ease of reference the following is a list of indicia identified in the authorities:  Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like. Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee. “The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”“[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”  Whether the worker performs work for others (or has a genuine and practical entitlement to do so. The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.  Whether the worker has a separate place of work and or advertises his or her services to the world at large.  Whether the worker provides and maintains significant tools or equipment. Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.  Whether the work can be delegated or subcontracted. If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the -- 6 of 11 -- [2017] FWC 5122 7 worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.  Whether the putative employer has the right to suspend or dismiss the person engaged.  Whether the putative employer presents the worker to the world at large as an emanation of the business. Typically, this will arise because the worker is required to wear the livery of the putative employer.  Whether income tax is deducted from remuneration paid to the worker.  Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.  Whether the worker is provided with paid holidays or sick leave.  Whether the work involves a profession, trade or distinct calling on the part of the person engaged. Such persons tend to be engaged as independent contractors rather than as employees.  Whether the worker creates goodwill or saleable assets in the course of his or her work.  Whether the worker spends a significant portion of his remuneration on business expenses. It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question. (5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by -- 7 of 11 -- [2017] FWC 5122 8 making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other. (6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.”29 [37] The Full Bench in Kimber further provided; “The courts have developed a multi-factorial approach, in which there is no single decisive criterion to determine whether a contractual relationship is one of employment or one subject to a contract for services. This approach requires the consideration of the various indicia as summarised in French Accent set out above. It is also clear from the decision of the Full Bench of the Federal Court in ACE Insurance Limited v Trifunovski30 and others, that no one single criterion will necessarily be determinative and that each matter will turn upon the particular circumstances of the case, with the decision maker weighing all the relevant factors.”31 [38] The ultimate question for the Commission as stated in Abdalla v Viewdaze Pty Ltd t/a Malta Travel32 and endorsed in French Accent: “… will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is whether, viewed as a practical matter, the punitive worker could be said to be conducting a business of his or her own. This question is answered by considering the terms of the contract and the totality of the relationship.” Whether Barcoo Retirement Village exercises, or has the right to exercise, control over the manner in which Mr Hinds’ work is performed, place of work, hours of work and the like [39] Whilst Mr Hinds would be required to get authority to purchase items for maintenance or repair work, otherwise he appeared to work autonomously. The invoice of 3 March 2017 sets out different charges for the performance of specific tasks on given days, rather than simply charging an hourly rate. He accepted that he determined what duties he would perform on a given day. This is indicative of a contracting arrangement. Whether Mr Hinds performs work for others (or has a genuine and practical entitlement to do so) [40] Mr Hinds accepted that his business contracted to do work for others including a local Church and a local Real Estate Agent. This is suggestive of independent contracting. -- 8 of 11 -- [2017] FWC 5122 9 Whether Mr Hinds has a separate place of work and or advertises his or her services to the world at large [41] Ms Noonan said that she prepared the invoices for the business on her own computer. As set out above, Hinzy’s Handy Help had undertaken some advertising in the past however this was now confined to sponsorship at sporting clubs. This is indicative of contracting. Whether Mr Hinds provides and maintains significant tools or equipment [42] The evidence was Mr Hinds used his his own vehicle, several lawn mowers, trailers and general garden equipment including chainsaws, hedge trimmers and an array of carpentry tools. This is indicative of contracting. Whether the work can be delegated or subcontracted [43] Mr Hinds and Ms Noonan accepted that on occasions the work was delegated to others, and those persons were paid using what Ms Noonan described as a barter system. This is indicative of contracting. Whether the Barcoo Retirement Village has the right to suspend or dismiss the person engaged [44] There was no written contract entered into. There was no evidence this point, other than the fact that Barcoo had maintained it had the right to bring the relationship to an end as it did as it was not an employment relationship. Whether the Barcoo Retirement Village presents Mr Hinds to the world at large as an emanation of the business [45] Mr Hinds was not required to wear a uniform by Barcoo, and provided his own work clothes that did not bear any logo. There was no evidence that Barcoo sought to present Mr Hinds as an emanation of the Retirement Village. This is indicative of contracting. Whether income tax is deducted from remuneration paid to Mr Hinds [46] It was accepted that income tax was not deducted from payments made to Mr Hinds, and his invoices from Hinzy’s Handy Help included a charge for GST. This is indicative of independent contracting. Whether Mr Hinds is remunerated by periodic wage or salary or by reference to completion of tasks [47] Mr Hinds was paid following the issue of an invoice in the name of Hinzy’s Handy Help. The evidence was the invoices were not issued on a consistent periodic basis, but could vary between two and three week periods. The invoice provided in the evidence sets out varying daily charges based on completed tasks. This is indicative of independent contracting. Whether Mr Hinds is provided with paid holidays or sick leave -- 9 of 11 -- [2017] FWC 5122 10 [48] Mr Hinds was not paid for holidays or leave. This is indicative of independent contracting. Whether Mr Hinds’ work involves a profession, trade or distinct calling on the part of the person engaged [49] Mr Hinds work was that of a typical gardener/handyman role. Such a role can commonly be undertaken in employment or contracting arrangements. This is a neutral consideration. Whether Mr Hinds creates goodwill or saleable assets in the course of his or her work [50] The was no specific evidence that addressed the matter of whether Mr Hinds was creating goodwill or saleable assets in the course of his work, other than the fact that it appeared from the evidence he was known to operate a business that performed handyman and gardening work for others in the local community. Whether the worker spends a significant portion of his remuneration on business expenses [51] Mr Hinds accepted that he spent a portion of his remuneration on his tools and equipment. This is indicative of contracting. Conclusion [52] The ultimate question is whether Mr Hinds was a servant of Barcoo Retirement Village or whether he was conducting a business on his own behalf that the work he performed was part of. [53] Having considered the various indicia in the context of the evidence in this case, it clearly supports a conclusion that the arrangement was one of independent contracting and not employment. The evidence is overwhelming that the character of the relationship was one of contracting. On that basis the jurisdictional objection is upheld and the application must be dismissed. [54] It appeared to me in the course of the determinative conference that Mr Hinds and Ms Noonan are also seeking to pursue a matter concerning Mr Hinds’ entitlement to superannuation. Having determined that Mr Hinds was not an employee, it is appropriate to make clear to the applicant that the question of whether section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) extended a requirement for the respondent to pay to superannuation to Mr Hinds is not a matter within the jurisdiction of the Fair Work Commission. COMMISSIONER Appearances: -- 10 of 11 -- [2017] FWC 5122 11 Mr A Hinds appearing on his own behalf Mr P Skewes appearing for the Respondent Hearing details: 2017, Brisbane: October 4 Printed by authority of the Commonwealth Government Printer <Price code C, PR596528> 1 Exhibit 2, Statement of Lorelei Kiernan dated 18 August 2017. 2 Exhibit 3, Statement of Peter Skewes dated 18 August 2017. 3 Exhibit 1, Statement of Allan Hinds dated 7 September 2017. 4 Exhibit 4, Statement of Peter Skewes dated 20 September 2017. 5 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 1-2. 6 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 3. 7 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 7. 8 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 9. 9 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 10. 10 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 11 – 12. 11 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 17(B)-(D). 12 Exhibit 1, Statement of Allan Hinds dated 7 September 2017 at paragraph 18. 13 Exhibit 2 ,Statement of Lorelei Kiernan dated 18 August 2017 at paragraph 2. 14 Exhibit 2, Statement of Lorelei Kiernan dated 18 August 2017 at paragraph 4. 15 Exhibit 2, Statement of Lorelei Kiernan dated 18 August 2017 at paragraph 5. 16 Exhibit 3, Statement of Peter Skewes dated 18 August 2017 at paragraph 3 (a)-(d). 17 Exhibit 3, Statement of Peter Skewes dated 18 August 2017 at paragraph 3 (e). 18 Exhibit 3, Statement of Peter Skewes dated 18 August 2017 at paragraph 3 (f) – (j). 19 Exhibit 3, Statement of Peter Skewes dated 18 August 2017at paragraph (k). 20 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 5 – 6. 21 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 11. 22 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 13. 23 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 14, attachment “PWS 1”. 24 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 15. 25 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 16 to 19. 26 Exhibit 4, Statement of Peter Skewes dated 20 September 2017 at paragraph 19. 27 Kimber v Western Auger Drilling Pty Ltd [2015] FWCFB 3704. 28 Jiang Shen Cai T/A French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307. 29 Ibid at [30]. 30 ACE Insurance Limited v Trifunovski [2013] FCAFC 3. 31 Ibid at [41]. 32 Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215. -- 11 of 11 --