Aaron Johnston v Wilson Security Pty Ltd T/A Wilson Security
[2018] FWC 6872
•13 NOVEMBER 2018
| [2018] FWC 6872[Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aaron Johnston
v
Wilson Security Pty Ltd T/A Wilson Security
(U2018/9334)
COMMISSIONER WILSON | MELBOURNE, 13 NOVEMBER 2018 |
Application for an unfair dismissal remedy – extension of time – representative error – exceptional circumstances – application granted.
[1] This matter concerns an application made by Aaron Johnston alleging unfair dismissal against his former employer, Wilson Security Pty Ltd (Wilson Security) T/A Wilson Security. Mr Johnston’s dismissal took effect on 30 July 2018 and his unfair dismissal application was received in the Fair Work Commission on Tuesday, 21 August 2018.
[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Mr Johnston’s application was made outside of the statutory time limit, with it having been made one day after the expiry of the 21 day time period allowed for by the Act, which ended on Monday 20 August 2018.
[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for the hearing and determination of whether an additional period of time should be allowed for making of Mr Johnston’s application. Wilson Security objects to there being an extension of time granted to Mr Johnston arguing that there are not exceptional circumstances for the extension of time to be granted owing to representative error on the part of Mr Johnston’s union, United Voice – Tasmanian Branch (United Voice).
[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2
[5] I am satisfied on material before me that, for the reasons set out below, an extension of time should not be granted to Mr Johnston for the making of his application.
BACKGROUND
[6] Between 1 March 2017 and 30 July 2018, Aaron Johnston worked as a security officer with Wilson Security in relation to a contract it had servicing the Mercy Community Hospital at Latrobe in Northwest Tasmania. Mr Johnston’s dismissal was the product of a workplace investigation which commenced in late May 2018 when a series of allegations about his behaviour and conduct were put to him. The complete chronology in relation to these matters does not appear to be before me at this time, however the process appears to have commenced close to 22 May 2018 when Mr Johnston was advised in writing, as confirmation of an earlier discussion, that he would be stood down on full pay until the conclusion of an investigation into certain allegations of serious misconduct on his part. The matters were further elaborated upon in a letter to him the next day, dated 23 May 2018. The allegations put to Mr Johnston related to his interactions with another employee, a female, with at least some of the allegations being particularised as sexually motivated and amounting to either harassment or inappropriate conduct towards the woman concerned. At least part of the allegations were particularised in the form of numerous text messages between the two.
[7] Mr Johnston was given an opportunity to provide initial responses to the allegations in a meeting held on 20 May 2018. He attended the meeting with his union representative and provided verbal responses to the allegations.
[8] Later, on 5 July 2018 Mr Johnston was provided with a “show cause” letter which indicated that five allegations had been found to be substantiated. He responded to the show cause letter with a written response originally on 11 July 2018 and then with a further written response on 16 July 2018. Mr Johnston then attended a meeting with management representatives on 30 July 2018 at which time one of the managers present, Daryl Milling, the Wilson Security State Manager, advised Mr Johnston that his employment had been terminated, and provided him with a letter confirming his termination of employment. The letter of termination advises Mr Johnston that the date of effect of his dismissal was the same date as that of the letter, namely 30 July 2018. The limited material for the Commission at this time indicates that Mr Johnston attended the meetings referred to with a support person, being a representative from United Voice.
[9] With the date of effect of Mr Johnston’s dismissal being Monday, 30 July 2018 an application for unfair dismissal remedy on his behalf made within time would need to have been filed in the Fair Work Commission by no later than Monday, 20 August 2018. Since the application was actually filed on Tuesday, 21 August 2018, the application is one day out of time. Mr Johnston argues that this circumstance is owing to representative error on the part of his union, United Voice.
[10] In relation to the action taken by Mr Johnston to dispute his dismissal he puts forward the following:
• The union’s industrial officer, Celeste Miller, rang him on Friday, 3 August 2018 and advised him that an unfair dismissal action could be commenced on his behalf.
• Having received that advice the following conversation then ensued:
“10. On Friday, 3 August Ms Miller telephoned me and we had words to the effect of the following conversation:
…
c) I said: "I want to go ahead with the unfair dismissal, how do I do that?"
d) CM: "I would draft the application for you using the notes on your file and then the
Union would lodge it with the Commission. We would then have a phone conciliation."
e) CM: "we have 21 days from the date the dismissal took effect to lodge the application with Fair Work. The date we have to file your application by is 21 August. You need to make a note of this date and make sure that you contact our office if you have not heard from me by that date or you are unsure if the unfair dismissal has been lodged." 3
[11] Mr Johnston’s evidence in the form of a witness statement filed for the purpose of these proceedings, which was not subject to cross examination, puts forward that he believed the advice given by Ms Miller regarding 21 August 2018 was correct. 4 His evidence is that he then rang Ms Miller again on 10 August 2018 and after enquiring about the progress associated with his application was told by Ms Miller that she had yet to commence drafting it and would expect to do so “next week” and would send it to him to review. Mr Johnston’s evidence is that he was also told by her that “the 21 days for lodging the application runs out on 21 August and I think we will lodge very close to that date”.5
[12] Mr Johnston says he had planned to contact Ms Miller on 20 August to check if there was a draft but instead he “heard from her by email asking some final questions about things and it seems that the application was nearly finished”. He then received, on Tuesday, 21 August 2018, a copy of the draft application. 6
[13] It was not until 12 September 2018 that he learned that his application had been lodged late with Mr Johnston gaining that knowledge when he received an email from the Commission advising that the application filed on his behalf had been lodged out of time. 7 When Ms Miller spoke to him shortly after the email had been sent, Mr Johnston told her that he had been informed by the Commission that his application had been lodged late to which she told him that “I think there must have been a mistake. I did not get a notice, could you please send it to me?” Later that day Ms Miller spoke to him again at about 4:00 PM saying the following to him:
‘21. Ms Miller called me back at about 4pm the same day and said the following:
a) "I'm so sorry Aaron, it appears I have lodged the application out of time because I somehow calculated the wrong date it needed to be lodged by so we were one day out of time.
b) This is my fault and you kept checking with me to make sure it was lodged on time.
c) I have contacted Wilson and they said they are still willing to go ahead with the phone conciliation first so we will prepare for that." 8
[14] For her part, Ms Miller’s statement to the Commission for these proceedings, also not the subject of cross examination, broadly confirms the matters referred to above from Mr Johnston. In particular, she confirms that she advised him that the last day for filing within time was Tuesday, 21 August 2018; 9 that she emailed a draft application to Mr Johnston on 20 August 2018,10 and filed the application on Tuesday, 21 August 2018.11 Ms Miller also gave evidence that she did not realise the application had been filed out of time until she had been alerted to the Commission’s correspondence by the Applicant on 12 September 2018.12 Her evidence is that she was quite shocked about the situation13 and, after speaking with the Unfair Dismissals Team in the Commission realised that she “had counted the days incorrectly and that the 21 day time limit expired on 20 August”.14
[15] Mr Johnston puts forward about his personal circumstances that, he is experiencing ongoing stress as a result of his dismissal, as is his family, since he is the primary breadwinner and that his family includes four school-aged children aged between 11 and 15, two of whom are “special needs” children. 15
[16] In her statement to the Commission, Ms Miller recollects that since returning from parental leave in May 2018 she had been working for the union part-time and that she had been dealing with a backlog of cases. 16 She also recalls that around the time the Applicant had been dismissed she was dealing with a high number of priorities because of her workload.17
[17] Ms Miller’s evidence also includes that after she learned of the late lodgement she spoke with Zach Tellis, an employee in Wilson Security’s Human Resources Department, who indicated to her that the company was still prepared to participate in the conciliation process. 18 In referring to this particular part of the evidence of Ms Miller, I note that the Respondent puts forward that such concession on the part of the company to attend the conciliation was without prejudice to any rights it may have to argue that an extension of time for the making of the application should not be granted. I accept that qualification on the part of the Respondent and do not ascribe to Ms Miller’s evidence about the conversation she had with Mr Tellis as it being anything other than a without prejudice concession for the purposes of conciliation. In this regard it is also to be noted that, in any event, it is for the Commission to be satisfied that there are exceptional circumstances that would warrant an extension of time and that it is not for the parties themselves to concede that there is no need for such consideration.
LEGISLATION
[18] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
[19] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”. 19
[20] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 20
[21] In considering whether an extension of time should be granted to Mr
Johnston, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
[22] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 21 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.22 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.23 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.24
[23] Mr Johnston firmly, and solely, relies upon representative error as being the reason for the late lodgement of his unfair dismissal application. He spoke with Ms Miller on 3 August and they discussed making an unfair dismissal application. She told him that he had until 21 August 2018 in which to make an application within time. On 10 August he checked with her about the application’s progress and was told that while likely to be lodged late in the piece that she had the matter in hand and that it would be lodged by 21 August. When he saw a draft of the application on 20 August he thought it was still on time, and relied on Ms Miller to lodge it within time. The first he knew there was a problem with the filing date was when he received correspondence from the Commission on the subject. Ms Miller’s evidence confirms these contentions.
[24] For their part, Wilson Security argue that Mr Johnston cannot be taken to have no responsibility for the late lodgement and that he had some or sufficient knowledge about the unfair dismissal system for him to have had some understanding of what was required and in particular the matter of the time limit for filing.
[25] The principles usually adopted by the Commission in respect of considerations of representative error are well-established and include:
“Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital 25 remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency26 in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 27 (references from original)
[26] The Full Bench’s findings neither stand for the proposition that an applicant may successfully outsource all the responsibility they may otherwise hold for making a timely application, nor that a late lodgement by an entirely negligent representative will never be rejected or subjected to scrutiny. An unrepresented applicant who is directly inattentive to their application, or mistaken in their calculations of the filing date will most probably be faced with considerable difficulty in persuading the Commission there are exceptional circumstances such that they should be allowed a further period in which to make their application.
[27] To that end, what is being argued in this matter is that simply because an experienced industrial advocate was busy and faced with multiple priorities (which must be stated not to be an exceptional circumstance, but rather a highly unexceptional circumstance) and they incorrectly calculated a filing date (also, a rather mundane and not exceptional circumstance), that ipso facto, the Applicant should be granted an extension of time.
[28] While the Full Bench has repeatedly made the point that an applicant has the full available statutory time period in which to make their application, and is not to be criticised for taking that time to file, the dangers of doing so are obvious and legion. Computer systems fail. Postal systems fail. Critical dates may be forgotten. Lawyers and industrial officers miscalculate filing dates. Bluntly, all concerned could have been saved a lot of trouble if filing of the matter had not been left to the assumed last day. Given that an unfair dismissal application does not have to be especially lengthy and is hardly a confined and unamendable set of pleadings, one has to wonder why a best practice approach may not be to lodge on the 10th day and not the 21st. A lot of trouble would be saved for all concerned, not to mention anxiety for an applicant.
[29] Given that Clark explicitly makes the point that representative error is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted, the Commission’s consideration in this matter of an extension of time should not rely entirely on the fact that Mr Johnston left his application with his union who then got the filing limit date wrong.
[30] As discussed above, Mr Johnston understood as at 3 August 2018 when he discussed his grievance with Ms Miller that firstly, an unfair dismissal application could be made based on his circumstances and secondly, that he had 21 days from the date of his dismissal to make such an application. While Mr Johnston did initiate follow up contact with Ms Miller on two further occasions in order to ensure the application was lodged, neither Mr Johnston nor Ms Miller appeared to think to double check the calculations put forth by Ms Miller in their conversation on 3 August 2018, which either were capable of doing so.
[31] I am satisfied that in the circumstances that Mr Johnston left the filing of his unfair dismissal application entirely in the hands of the United Voice and that an unfortunate error on the part of the industrial officer dealing with the application led to the late filing. While the error made is unfortunate, the fact of the error alone is insufficient to establish events out of the ordinary course. A miscalculation of the required timeframe to lodge an application is not of itself an exceptional circumstance; it is merely an unfortunate error. 28
[32] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Mr Johnston and for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
[33] On the basis of the evidence before me, I am satisfied that Mr Johnston first became aware of the termination of his employment on Monday, 30 July 2018. This is therefore not a circumstance where the Applicant only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.
3. Any action taken by the person to dispute the dismissal
[34] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 29
[35] I am not aware of any other action taken by Mr Johnston to dispute his dismissal, and the Applicant himself does not rely on any other action of dispute.
[36] In the circumstances, in which Mr Johnston was under the apprehension that an unfair dismissal application had been made on his behalf, consideration of this criterion is a neutral factor in my overall decision.
4. Prejudice to the employer (including prejudice caused by the delay)
[37] The delay in the filing of the application is one day. The Respondent submits that it will be inconvenienced if the matter proceeds, with that inconvenience amounting to prejudice if there is an extension of time for the making of Mr Johnston's application. While the Respondent objects to the granting of an extension of time to Mr Johnston I not am satisfied there is prejudice which is likely to accrue to the Respondent in this matter were an extension of time to be granted by one day. This factor is therefore a factor weighing in Mr Johnston’s favour in my overall consideration.
5. The merits of the application
[38] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
[39] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted:
“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 30
[40] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 31
[41] The merits of the application likely to be dealt with should the matter proceed to a hearing include the contention on the part of Mr Johnston that the investigation lacked procedural fairness and that the conduct complained about either did not take place, or that it did not take place as described. 32
[42] For its part, Wilson Security contests these arguments and argue that its decision to dismiss Mr Johnston is well founded and justified. It contends that Mr Johnston did not dispute a number of allegations against him, including text messages to the woman in question, a subordinate, the contents of which the Respondent argues should be viewed as sexual harassment. 33
[43] Mr Johnston’s defence of these matters is not to assert that the conduct relied upon by Wilson Security did not occur at all, but rather that he either disputes “that the conduct took place or that it took place not as described”, which is a somewhat muted defence. On the basis of the material so far filed, Mr Johnston’s case of unfairness appears to face some challenges, even at this early stage of proceedings, with success on his part likely having to depend substantially on establishing major procedural flaws in the employer’s investigation or perhaps mutuality on the part of person to whom his conduct and behaviour was directed.
[44] While such observations may be drawn from the material so far before the Commission, it remains the case that Mr Johnston is yet to put his full case before the Commission, the consequence of which is an acknowledgement that it is too early to be definitive about the strength of his case. I do not go so far as to say that his case is unmeritorious. This criterion is therefore a neutral factor in my overall consideration
6. Fairness as between the person and other persons in a similar position
[45] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 34 In relation to considerations of fairness with unfair dismissal applicants generally, allowing Mr Johnston an extension of time when other applicants there are not, merely because his union miscalculated the time limit would be unfair to those other people.35 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.36
[46] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Johnston. Both Mr Johnston and Ms Miller were aware of the time-limit, and Ms Miller made a mistake about when it expired, which does not on its own constitute exceptional circumstances.
[47] As a result, Mr Johnston’s application for unfair dismissal remedy must also be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Celeste Miller, from United Voice for the Applicant.
Gaby Czarnota for the Respondent.
Hearing details:
2018.
Melbourne (by telephone):
31 October.
Printed by authority of the Commonwealth Government Printer
<PR702142>
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].
2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].
3 Witness Statement of Aaron Johnston, dated 3 October 2018.
4 Ibid, [12].
5 Ibid, [14].
6 Ibid, [16]-[17].
7 Ibid, [19].
8 Ibid.
9 Witness Statement of Celeste Miller, dated 3 October 2018, [15].
10 Ibid, [22].
11 Ibid, [23].
12 Ibid, [25].
13 Ibid, [26].
14 Ibid, [30].
15 Witness Statement of Aaron Johnston, dated 3 October 2018, [8].
16 Witness Statement of Celeste Miller, dated 3 October 2018, [7], [9].
17 Ibid, [14].
18 Ibid, [34].
19 Nulty v Blue Star Group, 2011, 203 IR 1 [13].
20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].
22 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
23 Ibid, [40].
24 Ibid, [41].
25 (1997) 74 IR 413.
26 Print Q0784.
27 McConnell v A & PM Fornataro (t/as Tony’s Plumbing Service)[2011] FWAFB 466, 202 IR 59, [35].
28 Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [7].
29 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].
30 (2000) Print T2421 [14].
31 Haining v Deputy President Drake (1998) 87 FCR 248, [250].
32 Applicant’s Outline of Submissions, dated 3 October 2018, [34]-[36].
33 Respondent’s Outline of Submissions, dated 12 October 2018, [17]-[19].
34 Wilson v Woolworths [2010] FWA 2480 [24]‒[29]
35 Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
36 Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].
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