Andrew Kimpton v Venarchie Asphalting Pty Ltd

[2014] FWC 2175

[2014] FWC 2175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kimpton
v
Venarchie Asphalting Pty Ltd
(U2013/15824)

COMMISSIONER GREGORY MELBOURNE, 30 APRIL 2014

Application for extension of time.

Introduction

[1] Mr Andrew Kimpton has been employed by Venarchie Asphalting Pty Ltd (Venarchie) since 10 October 2005. However, on 9 December 2011 he injured his knee at work. He returned to work on the following Monday, but after working for 4 hours left to attend a medical appointment. Mr Kimpton subsequently made a workers’ compensation claim, which was accepted, and a process of treatment, rehabilitation, and the development of a return to work program followed.

[2] The last time that Mr Kimpton did any form of work at Venarchie was on 14 May 2012 as part of an attempted return to work plan. He has not been able to return to work since that time.

[3] On 30 August 2013 Venarchie sent a letter to Mr Kimpton asking him to provide evidence as to when he would be able to resume his normal duties, giving him until 16 September 2013 to provide a response. That letter also indicated:

“If you cannot do so, and as we have no other positions that would be suitable for you, we will accept that the contract of employment is frustrated and look to bring it to an end. If this is the case you will be paid your entitlements to that date.

We look forward to hearing from you.” 1

[4] Venarchie did not receive any response from Mr Kimpton to that letter.

[5] On 17 September 2013 Venarchie again wrote to Mr Kimpton, noting at the outset that no response had been received from him to the earlier letter. It continued to indicate:

“We hereby give you five (5) weeks’ notice which means your employment will end on the 22nd of October 2013. At the completion of this notice period your entitlements will be deposited to your bank account and we will provide a statement of service, a breakdown of your payment and a separation certificate.” 2

[6] That letter was sent by registered post with a lodgement receipt from Australia Post dated 17 September 2013.

[7] However, an Australia Post Delivery Confirmation Advice Receipt 3 indicates the letter was not received by Mr Kimpton until 25 September 2013 when it was signed for by him, 8 days after it was sent.

[8] On 24 October 2013 Venarchie again wrote to Mr Kimpton in the following terms:

“We refer to our previous correspondence dated 30th August 2013 and 17th September 2013.

As the five (5) weeks’ notice period has now lapsed we are making your final termination payment for the period up to 22nd October 2013. This includes two (2) days of workers compensation (with the remaining three (3) days for the week to be paid next week on your normal payment date).

You will continue to receive Workers Compensation payments on a weekly basis and be required to continue to provide Workers Compensation Medical Certificates to the company, however, there will no longer be any further leave entitlements accrued or long service leave contributions paid to Tasbuild for the period after the 22nd October 2013.

Please also find enclosed a payslip showing the breakdown of your payment, a statement of service and a separation certificate.” 4

[9] This letter was sent to Mr Kimpton by normal Australia Post mail delivery.

[10] Mr Kimpton subsequently made an application claiming he has been unfairly dismissed. His application sets out 3 grounds:

“(i) I was not given pay in lieu of notice – on workers’ compensation at the time.

(ii) I was not given any opportunity or fair opportunity to object.

(iii) I was not given opportunity of having a support person.” 5

[11] The application by Mr Kimpton is dated 13 October 2013. However, it is agreed between the parties that the application was incorrectly dated by Mr Kimpton’s legal representative and the correct date of lodging was 13 November 2013. (In this context it is noted Mr Kimpton has signed the first page of the form F2 application and dated it 13 November 2013. The application was also received by the Commission on this date.)

[12] Mr Kimpton also submits the application was lodged within the 21 day time period provided by the Fair Work Act 2009 because the five week notice of termination period, provided to him, could only begin to run from the date on which he received the letter giving him notice of termination. That date, according to the Australia Post Delivery Confirmation Advice Receipt was 25 September 2013. Five weeks from that date is 30 October 2013.

[13] Mr Kimpton also argues in the alternative that even if the five week notice period commences from 17 September 2013 his application was only lodged 1 day out of time and the Commission should, in all the circumstances, extended the time period in which to make application by means of the discretion available to it in s.394 of the Fair Work Act2009.

[14] Venarchie submits the five-week notice period commences from 17 September 2013, being the date of the letter giving notice of termination to Mr Kimpton, and therefore the application is out of time. It also submits there are no “exceptional circumstances” to warrant extending the time period in which to make the application.

[15] Legal representatives acting on behalf of both parties sought leave to appear in the proceedings. Leave was granted on the basis that the application and the surrounding jurisdictional issues involved a degree of complexity and granting leave could enable the matter to be dealt with more effectively.

The Issues to be Decided

[16] There are potentially two issues to be determined in dealing with the application by Mr Kimpton. Firstly, what is the date of termination of his employment? He was given 5 weeks notice of termination by Venarchie in the letter of 17 September 2013. However, Australia Post’s records indicate the letter was not received by Mr Kimpton until eight days later. Therefore, does the five week notice period commence from 17 September 2013, as Venarchie contends, or does it begin to run from the date it was received by Mr Kimpton, being 25 September 2013 as he contends?

[17] If the Commission finds in favour of Mr Kimpton in response to this issue, then the application was lodged within the 21 day time period, given that period would conclude on 20 November 2013. However, if the Commission finds in favour of Venarchie, and the application has been lodged out of time, then the second issue arises for determination. Are there “exceptional circumstances” existing pursuant to s.394(3) of the Fair Work Act 2009 to warrant the Commission exercising its discretion to allow Mr Kimpton further time to make his unfair dismissal application? In dealing with this issue the Commission is required to have regard to the particular matters referred to in the sub section.

The Evidence and Submissions

1. The date of termination.

[18] Mr Kimpton acknowledges that Venarchie commenced the dismissal procedure in respect of his employment in August 2013. The letter dated 30 August 2013 from Venarchie in his submission “purported to give the Applicant notice of an intention to terminate his employment and invite submissions as to his employability.” 6 However, Mr Kimpton submits he has no recollection of having ever received this letter. Nevertheless, even if it was received he submits his physical and psychological condition at the time made it difficult for him to “respond rationally with the receipt of such letter.”7

[19] Mr Kimpton next refers to the letter dated 17 September 2013 and submits registered mail is not served on the recipient until it is served personally, or received by another person who accepts it and signs the acknowledgement card. He also submitted that prior to the date of the hearing Venarchie had not provided a copy of the registered post confirmation advice. However, immediately prior to the commencement of the hearing this was provided by Venarchie to Mr Kimpton. It indicated the letter was received and signed for by him on 25 September 2013.

[20] Mr Kimpton accordingly submits the five week notice of termination period only begins to run from when he first received that notice of termination, being 25 September 2013. Five weeks from that date concludes on 30 October 2013 and, therefore, the application lodged on 13 November 2013, 13 days after that date, was lodged within the 21 day time period provided for by the Act. Mr Kimpton also submits Venarchie elected to send the letter by registered post, therefore it must accept the evidence about the date of receipt of the letter the registered post process provides. He also submits there is no evidence of him seeking to avoid receipt of the letter and that situation cannot be relied upon in favour of an argument about an earlier receipt date being the correct one.

[21] Venarchie submits Mr Kimpton has not worked in his substantive role since December 2011 and has not participated in a return to work program since May 2012. It refers to the letter of 30 August 2013 and submits no response was received from Mr Kimpton. It accordingly sent the letter dated 17 September 2013, giving 5 weeks notice of termination. It submits the date of termination is 22 October 2013 as stated in that letter and the application is therefore one day out of time.

[22] In its submission “when general language conflicts with specific language, the specific language governs, thus the specific date of 22 October, 2013 is the date of termination.” 8 It further submits its intention was clear and evident and any other interpretation would lead to an “absurd result,”9 meaning an employer could not know when a notice period commenced to run and when that notice period expired. In its submission the letter of 17 September 2013 clearly sets out the effective date of termination and Mr Kimpton was made aware of that date well in advance. The subsequent letter sent to him, dated 24 October 2013, also acted to confirm all of the associated arrangements relating to his termination.

2. “Exceptional circumstances?”

[23] The parties made limited submissions about the various considerations the Commission is required to have regard to in order to find that exceptional circumstances exist to warrant an extension of time for making an application. Mr Kimpton submits the reasons for the delay in lodging his application primarily relate to his medical condition. He submits the injury he sustained in the workplace has led to various complications that have left him physically and mentally disabled. For those reasons he did not respond when previously contacted by his employer, and did not act in a timely way in responding to his termination.

[24] Mr Kimpton also submits the delay in making application is of the shortest possible duration, given it was lodged only one day out of time, and there is limited prejudice caused to Venarchie as a consequence.

[25] Mr Kimpton also submits his application has merit because of the lack of procedural fairness provided to him. He submits he was not provided with the opportunity to meet and discuss his termination, and was not given the opportunity of having a support person present in any such discussion. He also submits his long period of service has not been taken into account.

[26] Venarchie submits Mr Kimpton had adequate opportunity to make an application. Despite numerous attempts to make contact in the period leading up to his termination the only time he responded was in June 2012 when his workers’ compensation payments were stepped down. It submits Mr Kimpton took no action to dispute his dismissal until finally lodging his unfair dismissal application, despite being on notice for approximately 3 months that Venarchie was beginning a process that could result in his termination. Venarchie also made submissions going to the merits of the application. It submits the matter involves a situation of “genuine frustration of contract 10”, and it is unlikely Mr Kimpton will ever be able to return to the workplace. It also submits it took all reasonable steps to contact him, and to allow him to provide evidence he was in a position to be able to return to work at some point, but to no avail. It also denies he has ever been prevented from having a support person present in any discussion related to the termination of his employment.

Consideration

1. The Date of Termination

[27] The parties did not make reference to any particular authorities in their submissions about this issue, and I am not aware of any decision that is directly on point. By way of background the Termination, Change and Redundancy “test case” decision 11 established the standard notice of termination period that Venarchie applied to Mr Kimpton’s termination, being 4 weeks notice plus one additional week, given his age. In establishing this standard the Full Bench also made reference to why a period of notice is provided when it stated:

“Further, in our opinion the traditional week’s notice of termination included in Federal awards provides no practical opportunity for those who have been in a particular job for some time to adjust to the proposed change in circumstances, reorganize their lives and seek alternative employment. In particular, in current economic circumstances, one week would not provide sufficient time for many employees to find another job or for employers to find another employee.” 12

[28] In the decision of Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc.) 13 (Burns) the Full Bench was required to consider the circumstances in which a letter of termination was delivered to the employee’s home, the at a time when she was away from home on annual leave. A family member opened the letter and read its contents to the employee over the phone. The letter also purported to make the termination effective from a date four days prior to the date of the letter. The Full Bench held:

“The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant’s home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.” 14

[29] The Full Bench continued to indicate:

“As we have stated, however, we consider that the better view is that the termination did not take effect until it was communicated to her, i.e., at the earliest, 19 April 2000.” 15

[30] In the matter of P.T. Wilson v Australian Taxation Office 16 (Australian Taxation Office) the Full Bench was required to consider whether a notice of termination had been provided to the employee within his probationary period. In its decision the Full Bench made reference to the decision of Keely J in Transport Workers Union of Australia v National Dairies Limited17, where His Honour found:

“In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.” 18

[31] The Full Bench continued to state:

“With respect we agree with his Honour’s conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” 19

[32] The Full Bench also noted the further submissions of the appellant; while a termination might not take effect until the termination letter is received, once it is communicated the termination operates according to the terms of the letter. The Full Bench indicated in response:

“We reject this submission. We do so primarily because its adoption has the potential to frustrate the operation of the legislation. It would permit a party to select an operative date for termination which bore no relationship to the date on which the termination was to be communicated to the other party. A range of examples could be constructed but it is sufficient to mention only one.” 20

[33] It continued to indicate:

“It seems to us that in the case of this kind ‘termination’ must be construed to refer to the date on which the termination is communicated to the employee.” 21

[34] The Full Bench also noted that a similar conclusion was reached in the earlier decision of Burns referred to above.

[35] The circumstances in the two Full Bench decisions are, of course, different from the present matter in that they both deal with issues about whether termination can take effect prior to notice of that termination being received by the employee. In the present matter the issue is about whether a period of notice of termination can be said to commence prior to that period being communicated to and received by the employee. In this context it is pertinent to note the Full Bench in the decision involving the Australian Taxation Office appears to draw a distinction between these two different circumstances when it noted at [16]:

“We wish to make it clear that our decision does not deal in any way with cases involving communication of an intention to terminate a contract of employment from a date in the future.” 22

[36] In Joanne Zahlan v Subaru Melbourne Pty Ltd 23 Commissioner Lewin made reference to the reasons why it is obviously important for an employee to be made aware of their termination of employment when he stated:

“It seems to me that the statutory requirement must depend upon the employee becoming aware of the act of termination. Otherwise it would seem that the Act could make it impossible for some employees who were not “given notice” to conform with the requirement.” 24

And further:

“I am of the view that the plain meaning of the words of the section is that not only must the act of termination be notified, i.e. by publication and dispatch of some written or oral advice referred to generally as “notice” in the Act, but also that such advice must be given to the employee.” 25

[37] He continued to indicate:

“It will be noted that action to contest the dismissal may be a relevant consideration for the purpose of the exercise of the discretion to accept an application. It is elementary that action to contest a dismissal is not effectively possible in most cases, if not all, unless awareness on the part of the employee that the employer has acted to dismiss the employee can arise. This, of course, is consistent with the interpretation of the statutory provisions which I favour, to the effect that the employee must be given notification by an employer and that it must be effective for the statutory purposes. That is to say, the statutory effect of the notification is contingent upon the employee learning of the act of termination for the purposes of the statute. Perhaps more importantly for present purposes awareness of the termination is fundamental for the employee to act with expedition to lodge an application and contest the termination.” 26

[38] In the matter of Ms B and S Enterprises Pty Ltd 27 (S Enterprises) Senior Deputy President O’Callaghan was also required to consider what was the date of termination in circumstances where there was dispute about when a letter of termination was actually received. However, he was also required to consider whether the employee was entitled to a notice period, and whether that period should also be taken into account in determining the actual date of termination. The Senior Deputy President concluded that failure to provide the requisite notice period might give rise to a breach of the obligation to provide notice of the proper period, but that failure could not act to change the actual date of termination. He dealt with the issue in the following terms at [18]:

“I have serious reservations about the validity of approval of the AWA under which Ms B was engaged. This agreement purports to establish Ms B as a part time employee who was clearly engaged on a casual basis. However, irrespective of the standing of this AWA, I am unable to conclude that a failure to give appropriate notice to Ms B extends the effective date of termination of employment. It may well give rise to a claim under section 661 but it cannot change the date of termination of employment.” 28

[39] I am satisfied that the various decisions referred to are, firstly, authority for the proposition that a termination cannot take effect, in most cases, until such time as notice of that termination has been communicated to and received by the employee. In addition, termination cannot generally take effect prior to the date it is made known to the employee. In both instances any other outcome obviously has the potential to deny an employee adequate opportunity to pursue any claim or action that might arise from her/his dismissal.

[40] However, I am also satisfied that a distinction can be drawn, based again on the decisions referred to, between the requirement for termination to be made known to the employee before it takes effect, and the requirement for notice of termination to be communicated to an employee before that period of notice commences to run. I have already made reference to the decision of the Full Bench in Australian Taxation Office when it stated:

“We wish to make it clear that our decision does not deal in any way with cases involving communication of an intention to terminate a contract of employment from a date in the future.” 29

[41] Reference has also been made to the decision of Senior Deputy President O’Callaghan in S Enterprises who was unable to conclude that a failure to give appropriate notice extends the effective date of termination and, instead, such failure might rather give rise to a claim for breach of the relevant notice of termination provisions, “...but it cannot change the date of termination of employment.” 30

[42] I am satisfied that this is the appropriate approach to adopt in the present matter and is a practical and commonsense approach in all the circumstances. The fact Mr Kimpton can establish he did not receive the notice of termination until eight days after it was sent to him cannot be said to have deprived him of the ability and opportunity, within a reasonable time period, to take action in response. He had, in fact, been on notice that Venarchie was, in his own submission commencing dismissal procedures in respect of his employment 31 since the letter dated 30 August 2013 was sent to him. For reasons that are not entirely clear Mr Kimpton took no action or did not respond to that letter. Furthermore, even if it is conceded that he did not receive the notice of his termination until eight days after Venarchie believed it had provided it to him he still received it 28 days in advance of the intended termination date. In terms of then proceeding to lodge an unfair dismissal application he had a further 21 days from the actual date of termination to lodge an application within the time period prescribed by the Fair Work Act. In short, this means that from when he first confirmed he received the letter giving him notice of termination he had 49 days, or seven weeks, before the expiry of the 21 day period in which to make an unfair dismissal application.

[43] I am satisfied that the failure to make known the commencement of a period of notice of termination does not have the same consequences as the failure to make known the fact of termination itself. In all the circumstances I respectfully concur with the decision of Senior Deputy President O’Callaghan in S Enterprises. Mr Kimpton may have a claim for breach of the notice requirements, but any delay in him being provided with the five week notice of termination period does not act to extend the actual termination date. It follows that his termination date is 22 October 2013 and his unfair dismissal application was, accordingly, lodged one day out of time. I therefore turn to the second issue that now arises for determination.

2. “Exceptional circumstances?”

[44] An application for an extension of time under s.394(3) of the Act requires that there be “exceptional circumstances” to warrant the exercise of the discretion to grant additional time to make application, taking into account each of the matters set out in the sub section. I now turn to deal with the evidence and submissions of the parties by reference to those considerations and the relevant authorities.

[45] Venarchie made reference to the Full Bench decision in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers 32 and the finding of the Full Bench that the word “exceptional” should be given its ordinary meaning for the purposes of the Act. The decision in Nulty v. Blue Star Group Pty Ltd33 is also often cited in support of what is required to find that “exceptional circumstances” exist to justify an extension of time being granted. The Full Bench stated at paragraph [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.” 34

[46] I have adopted the reasoning the Full Bench in coming to a decision in this matter.

(a) the reason for the delay

[47] Mr Kimpton submits the complications that followed from the injury he suffered at work in 2011 have left him in a position where he has been unable to respond rationally and in a timely manner to the termination of his employment. Clearly, Mr Kimpton’s injury and what followed from it are a most unfortunate set of circumstances and have been a significant upset in his life. The complications that apparently followed from the injury are also something that is not normally encountered.

[48] However, at the same time Mr Kimpton was, by his own submissions, on notice for an extended period of time that Venarchie was proceeding down the path that would likely result in the termination of his employment. It first foreshadowed this possibility in the letter dated 30 August 2013. It confirmed this outcome in the letter dated 17 September 2013, which Mr Kimpton received on 25 September 2013. It sent a follow-up letter on 28 October 2013, providing all the entitlements due to him on termination. Mr Kimpton was accordingly on notice for at least 3 months prior to the expiry of the 21 day period in which to make application that Venarchie was beginning a process that could lead to his termination. He was given notice of the date of termination at least 49 days before the expiry of that 21 day period. Despite his unfortunate medical condition I am not satisfied it can be concluded that “exceptional circumstances” prevented him from making an unfair dismissal application within the requisite time period.

(b) whether the person first became aware of the dismissal after it had taken effect

[49] As indicated, Venarchie wrote to Mr Kimpton in August 2013 foreshadowing his possible termination. Mr Kimpton acknowledges he received notice of termination on 25 September 2013, 28 days before his termination took effect. It was also confirmed in the letter provided to him, dated 28 October 2013. He cannot be said to have first become aware of his termination of employment after it had taken effect.

(c) any action taken by the person to dispute the dismissal

[50] Again, as indicated, despite being on notice of his dismissal for at least 7 weeks before it took effect Mr Kimpton appears to have done nothing to take issue with his termination until one day after the expiry of the 21 day period in which to lodge an unfair dismissal application.

(d) prejudice to the employer (including prejudice caused by the delay)

[51] Venarchie acknowledges this consideration is not significant, given the application is one day out of time. Nevertheless, it is a small employer and would be required to direct attention and resources to the application if it proceeds.

(e) the merits of the application

[52] Mr Kimpton has not performed his substantive duties at Venarchie since December 2011. He has also not participated in a return to work program since May 2012. Furthermore, there is no suggestion he is likely to return to work in the foreseeable future. Mr Kimpton also submits he has been denied the opportunity of meeting to discuss his impending termination, and denied the opportunity to have a support person present in any such meeting. This appears to be a difficult submission to sustain. The last occasion on which Mr Kimpton was apparently in contact with his former employer was in June 2012. Numerous attempts by Venarchie to make contact have followed since that time, including by means of the letter dated 30 August 2013. In all of these circumstances Mr Kimpton cannot be said to have been denied the opportunity to meet, or been denied the opportunity to have a support person present in any such meeting.

(f) fairness as between the person and other persons in a similar position.

[53] This is of limited relevance in the present matter. There are no others in a similar position at this time.

Conclusion

[54] In conclusion, having had regard to each of the considerations in s.394(3) of the Act I am not satisfied that “exceptional circumstances” exist to warrant an exercise of the discretion to extend the time in which to make application. The apparent lack of merit in any such application is a significant factor in coming to this conclusion. Mr Kimpton was also on notice of his impending termination well before it took place. Regardless of his medical condition I am satisfied, in all the circumstances, that he had both the ability and opportunity to make application within the 21 day period following his dismissal. He did not do so. I am not satisfied there were “exceptional circumstances” in the context of s.394(3) that prevented him from doing so. The application is dismissed.

COMMISSIONER

Appearances:

Darrell Grey appeared on behalf of the Applicant.

Andrew Cameron appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne and Launceston:

31 January.

 1   Annexure to the Outline of Submissions of the Applicant at page 16

 2   Ibid at page 17

 3   Exhibit G1

 4   Annexure to the Outline of Submissions of the Applicant at page 20

 5 F2 application of Andrew Kimpton

 6   Outline of Submissions of the Applicant at para 2.2

 7   Ibid at para 2.5

 8   Outline of Submissions of the Respondent at Part A; para 7

 9   Ibid at Part A; para 8

 10   Ibid at Part C; para 2(e)

 11   Mis 250/84 MD Print F6230

 12   Ibid at page 19

 13   Dec 1413/00 M Print T3496

 14   Ibid at [24]

 15   Ibid at [26]

 16   PR901127

 17 (1994) 57 IR 183

 18   Ibid at 184

 19   PR901127 at [11]

 20   Ibid at [13]

 21   Ibid

 22   Ibid at [16]

 23   PR940355

 24   Ibid at [7]

 25   Ibid

 26   Ibid at [12]

 27   [2007] AIRC 829

 28   Ibid at [18]

 29   PR901127 at [16]

 30   [2007] AIRC 829 at [18]

 31   Outline of Submissions of the Applicant at 2.1

 32   [2010] FWAFB 7251

 33   [2011] FWAFB 975

 34   Ibid at [13]

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