Anthony Joseph Capelinha v Macmahon Contractors Pty Ltd
[2022] FWC 2043
•10 AUGUST 2022
| [2022] FWC 2043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Anthony Joseph Capelinha
v
Macmahon Contractors Pty Ltd
(C2022/879)
| DEPUTY PRESIDENT BELL | MELBOURNE, 10 AUGUST 2022 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional - application dismissed.
Mr Anthony Joseph Capelinha (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he was dismissed from his employment with Macmahon Contractors Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act.
Before dealing with the dispute, I must be satisfied that the application was not made out of time. Section 366(1) of the FW Act provides that such an application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. On the basis of the Form F8 application and Form F8A Response filed with the Commission the application was made outside the 21-day timeframe.
Upon the matter being allocated to me to determine whether to allow further time for the application to be made, I issued directions on 5 July 2022 for the filing of evidence and submissions. The directions listed a mention hearing for 13 July 2022. Initially, the Applicant was required to file and serve his material by 18 July 2022. An extension of time hearing was listed for 2 August 2022.
The mention hearing did not proceed. On 12 July 2022, my chambers corresponded with the parties in anticipation of the mention hearing. That same day, the Applicant indicated his attendance. However, the following day the Applicant wrote stating he was sick in bed with “the flu” and also with COVID-19 (a photograph of a positive Rapid Antigen Test result was attached). No medical certificate was provided for the influenza diagnosis but the Applicant stated “No condition for zoom [sic, presumably a reference to the Microsoft Teams mention hearing that day] so if you want to keep the next one open for the 2nd of August that also suits me also”.
While the Applicant had indicated that the hearing date of 2 August 2022 was “open”, and even though he had not requested an extension of time to file and serve his material, I extended the filing date for the Applicant to 4:00pm, 20 July 2022 and confirmed the hearing date of 2 August 2022 remained on foot. Correspondence from chambers was sent to that effect.
On 14 July 2022, a Notice of Listing was also sent to the parties, containing among other matters a Microsoft Teams link for the hearing on 2 August 2022.
By Wednesday, 20 July 2022, the Applicant failed to file any material and did not otherwise contact chambers to provide an explanation or to seek an extension.
On Thursday, 21 July 2022, I unilaterally extended again the time for the Applicant to file and serve his material until midday (Perth time) on Friday, 22 July 2022. The email from my chambers stated that any further request for an extension of time should be properly supported by a statutory declaration explaining why further time is required. The email stated that, if there were medical reasons, then a letter from a treating practitioner explaining why the directions were unable to be complied with should be provided.
On Friday, 22 July 2022, no material was received from the Applicant in response to the (extended) timetable for the Applicant’s material nor any explanation. A telephone call from my chambers was made later that day but was unanswered. A message was left stating that the deadline for his evidence and submissions supporting his extension of time application was 12:00PM today (Perth time) and requesting that he file his material as soon as possible and an explanation why it was late. The Applicant was advised that if he did not file his material soon there was a risk that his matter would be dismissed.
On Monday, 25 July 2022 correspondence from my chambers was sent to the Applicant. Among other matters, the email noted that no material had been received from the Applicant to date nor any explanation for non-compliance. The email noted various possible consequences for the Applicant, including that his application might be dismissed and that the matter might proceed in his absence. The Applicant was directed to file and serve submissions, evidence or any other documentary material in support as to why his application should not be dismissed.
Later on 25 July 2022, the Applicant replied by email. No submissions or material was provided. The email stated that he had obtained new employment since his last correspondence. He stated the job was farm work and, when there, he does not have email or telephone coverage. He stated when he was available, which was between 12 August and 30 August 2022 and asked for his case to be postponed. He also indicated the postponement would “give me time to prepare my evidence and supporting material…”.
On Tuesday, 26 July 2022, my chambers sent further correspondence refusing the adjournment request and confirmed the hearing for 2 August 2022. The Applicant was informed that if he filed any material between then and the hearing, he would need to first obtain leave before relying upon it. He was again warned that if he did not attend, the matter would proceed in his absence and his matter might be dismissed.
On Thursday, 28 July 2022, the Applicant sent an email indicating he would be attending the hearing on 2 August 2022 and that Miss Sandra Crack “will also be present as participant and talk on my behalf”. The Applicant has not otherwise filed any material.
On 2 August 2022, the extension of time hearing went ahead. Miss Crack also attended and provided some assistance to the Applicant. I permitted the Applicant (and Miss Crack) to address me on factual and legal matters regarding the extension of time application. Mr Rogers, solicitor, appeared for the Respondent.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 2 February 2022.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect although, somewhat unusually, the Respondent states a later date of dismissal that is more beneficial for the Applicant.
The Applicant’s Form F8 application submits that the dismissal took effect on 1 December 2021 after having been given notice on 15 November 2021. On this basis his application should have been filed by 22 December 2021 and was 42 days’ late.
The Respondent’s Form F8A Response submits that the dismissal in fact took effect on 22 December 2021, being his last day of employment. On this basis his application should have been filed by 12 January 2021 and was 21 days’ late.
The Respondent filed, along with its Form F8A Response, various documents that primarily comprised of correspondence leading up to the termination of the Applicant’s employment. It is unnecessary to set them out in full. The following extract from a letter dated 14 December 2021 provides sufficient initial context:
“On 25 October 2021, Macmahon Contractors Pty Ltd (Company) issued you a lawful and reasonable direction to comply with the Public Health Act 2016 (WA) Resources Industry Worker (Restrictions on Access) Directions (Directions) or provide evidence to the Company of a valid medical exemption in relation to compliance with the Directions.
The Company wrote to you on 25 November 2021, and you were stood down without pay on 30 November 2021. You were provided with a two-week Grace Period, within which you could take steps to comply with the Directions and provide evidence of your vaccination status by uploading it to the online portal, or inform the Company of your intention not to do so.
Our records show that as an unvaccinated employee (without an eligible exemption), you cannot perform work at the Tropicana Gold Mine Site as a Driller - Experienced, meaning that you are not able to perform the inherent requirements of your role. Further, given the inherent requirements of your role, you are unable to perform work at any other alternative project.
As a result of the Directions, your last day of work was 29 November 2021 and it is not anticipated that you will be able to return to work in the foreseeable future.”
The letter continued and required a response by 20 December 2021, including in relation to any matter that the Applicant might say about his ability to perform the inherent requirements of his job. The Applicant evidently did reply, on 15 December 2021. (I note that the Applicant’s Form F8 refers to him having sent letters on five occasions, including one item described as a 25-item questionnaire).
The Respondent sent a subsequent letter, dated 22 December 2021, which relevantly stated:
“On 14 December 2021, Macmahon Contractors Pty ltd (Company) wrote to you and invited you to provide a response, or for you to submit any further information in relation to your ongoing ability to perform the inherent requirements of your role as a HD Fitter & Mechanic at the Tropicana Gold Mine.
The Company has considered your responses received on 15 December 2021.
After careful consideration of all the facts and considering your responses, as a result of your inability to access Tropicana Gold Mine, without a clear indication as to when you might be able to do so, the Company has confirmed its initial view that you are unable to perform the inherent requirements of your role, and there are no reasonable alternative locations available that would allow you to do this. In the circumstances, unfortunately, your contract of employment has been frustrated and is at an end by virtue of law.”
The fact of these letters was not challenged (although, as already noted, the Applicant and Miss Crack had more to say about the lawfulness of terminating employment in such circumstances, which I will return to below).
Despite the Applicant having been on ‘stand down’ before this date, I consider it tolerably clear that his employment ended on 22 December 2022. Having regard to the matters I have referred to above, I find that the dismissal took effect on 22 December 2021.
In doing so, I am satisfied that the statement by the Respondent that the contract ended as a matter of law by the doctrine of frustration is nonetheless a termination at the initiative of the Respondent. In this respect, I note that the letter does not specifically state when the frustration took effect but the totality of the correspondence, and the Respondent’s Form F8A Response, I find that the employment ended on 22 December 2021.
Given the question of “frustration” being raised, I have considered whether I need to determine that issue first, having regard to the Full Court decision in Coles v Milford[1]. In that decision, the Court did not exclude as a matter of course the prospect that the ‘out of time’ question might be determined before the ‘dismissal’ question. At [59], the Court stated that:
“...there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.”
In the present case, the Respondent did not actively press for the “frustration” matter to be addressed first but did address me on the question of the extension of time. In the circumstances, and noting it makes no difference to the relevant date of any dismissal, I am satisfied to proceed on the basis of determining the extension of time question first. If frustration occurred, it occurred as a matter of law and did not determine the employment contract by reason of the letter dated 22 December 2021. It appears to me that the parties were in a ‘stand down’ arrangement up until then, which could have theoretically been extended by the parties but for the Respondent’s letter. It appears that the Respondent, quite appropriately, considered that was not a satisfactory state of affairs and had issued correspondence to that effect, which culminated with the letter dated 22 December 2021. In those circumstances, I am sufficiently satisfied that there was a dismissal on that date, although I recognise that the (pragmatic) absence of a contest of that issue in circumstances where the Applicant was repeatedly in default of his filing requirements indicates that the Respondent should in no way be considered from being precluded from raising that objection in other claims or fora should the occasion arise.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 22 December 2021. The final day of the 21 day period was therefore 12 January 2022 and ended at midnight on that day. The application was made on 2 February 2022. The application was made 21 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 January 2022. The delay is the period commencing immediately after that time until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
I note that the Applicant filed no evidence beyond what was in his Form F8, although I permitted him and his representative to make submissions before me at the hearing on 2 August 2022. The Applicant submitted that the delay was for various reasons. They included that the Perth registry of the Fair Work Commission was closed for extended periods and he said that whenever he rang he was put on hold for extended periods and no one answered.
The Applicant says, and in a general sense I accept, that he was suffering tough times after his dismissal, in part because his partner had evicted him from their premises (it appears, because he had failed to get a vaccination which led to the loss of his job). The Applicant states he was sleeping in his car, at least in part. The exact dates of any of this are unclear, as were the attempt(s), such as they were, to speak with the Fair Work Commission.
I am prepared to accept that the Applicant physically attended the Fair Work Commission registry in Perth at times when it may have been temporarily closed. Specifically, upon my enquiries, the Perth registry was closed or not physically attended during the following times:
· 24 December 2021 – office closed from 3:00pm AWST
· 25 - 29 December 2021
· 30 & 31st December 2021 – staff working from home
· 1 to 11 January – office closed due to various COVID restrictions and 3 January 2022 closed entirely.
· 26 January 2022 – Australia Day.
However, Client Services staff returned to the office from 12 January 2022 and the office stayed open (and physically attended) until April 2022, save for Australia Day as noted. The Fair Work Commission telephone line was unaffected and remained open other than public holidays, although it closed at 3:00pm AWST on Christmas Eve.
Miss Crack referred to the Applicant having low literacy skills. Without criticism of Miss Crack, the reference to the Applicant’s literacy skills was asserted in a general sense but I am not satisfied that it prevented the Applicant from taking steps to make his application. In this respect, I note that (as stated in the Applicant’s Form F8), the Applicant had generated letters on at least five occasions prior to his dismissal, including responding to a letter dated 14 December 2021 by 15 December 2021. The Applicant also prepared the Form F8, which he completed by hand. He was also capable of communicating with chambers by email when the matter was allocated to me.
While I accept that the Applicant was generally uncertain about the steps required to be undertaken, the evidence (treating the submissions made to me as evidence) do not disclose a lack of understanding or ability beyond a typical case involving someone otherwise unfamiliar with the Fair Work Act or without any extensive education.
Also, while I accept that the Applicant’s personal circumstances at the time were plainly stressful, I do not accept that they were such as to prohibit him completing his application and certainly not as late as 2 February 2022. In this respect, I note that on the Applicant’s own submission, he was capable of attending and calling the Fair Work Commission. I do not accept, however, as the Applicant appeared to suggest that he was otherwise incapable of doing so beyond those attempts or that the Fair Work Commission was extensively unavailable.
Having regard to the above, I find that the reasons for the delay included the matters I have described but, beyond those matters, no other factors were advanced to explain the delay.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute his dismissal prior to making the application on 2 February 2022.
In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no particular prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Respondent’s stated reasons for dismissal are set out above. In short, the stated reason was that the Applicant did not comply with the Resources Industry Worker (Restrictions on Access) Directions by reason of non-vaccination. They were directions issued under relevant public health orders under the laws of Western Australia. I am satisfied on the material before me – and it was not suggested otherwise - that those directions applied to the Applicant and his employment at the time and that those directions prevented the Applicant from attending his usual worksite if he was not relevantly vaccinated with an approved COVID-19 vaccine.
The Respondent filed written submissions that addressed a number of matters supporting the Respondent’s contention that the claims were without merit. It was not strictly necessary for the Respondent to have filed that material but, having done so, it placed the Applicant on further notice about the need for him to file material in support of his claim. As I have previously noted, the Applicant did not do so and, respectfully to the Applicant and Miss Crack, their oral submissions did not directly engage with the matters raised by the Respondent in its written material.
The Applicant’s Form F8 states that the workplace rights contravened were s.343 (Coercion) and s.344 (Undue influence or pressure). He also asserts adverse action for industrial activities, indicating s.348 (Coercion). Finally, his Form F8 relies on s.351 (Discrimination).
However, the Applicant’s Form F8 does not disclose any obvious cause of action.
The Form F8 distils the Applicant’s grievance about how his employment ended. He states “It was basically the way take it or leave it NO JAB NO JOB”.
At the hearing before me, complaint was made on behalf of the Applicant that the Respondent failed to provide the Applicant with, or inform him about, the decision of Deputy President Dean in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWCFB 6015, particularly at [103]ff. The effect of the submission was that the decision was of such significance in informing the Applicant of his rights and that a failure by the Respondent in providing it to him operated as some form of substantial unfairness or breach of duty. The source of the obligation was not identified. While I am mindful that the Applicant or Miss Crack are not legally trained, and some leeway should be granted, there was nothing in the material before me that indicates the Respondent had assumed such an obligation and I do not consider that a free-standing obligation exists.
In any case, the failure to provide such a document does not point to a dismissal in contravention of any of sections 343, 344 or 348 of the FW Act or section 340 for completeness. Those sections focus attention on the reasons for dismissal and whether the dismissal is “because of” of reason or substantive reason prohibited by the FW Act.
The Applicant did not specifically identify a contravention of s.340, although giving leeway to him as a self-represented party, I will consider it. Section 340 prohibits dismissal because a person had, has or is exercising, or is proposing to exercise, a “workplace right”. The source of workplace rights are varied but may be distilled to rights under a “workplace law” or “workplace instrument”, as well as rights to “make a complaint or inquiry” in relation to his employment. As to whether the Applicant had positive rights (presumably, not to be vaccinated) under a workplace law or instrument that operated in conflict with the clear requirements of the Resources Industry Worker (Restrictions on Access) Directions, I doubt any workplace law or workplace instrument exists. None was drawn to my attention, although I will return to this below concerning rights against discrimination.
Moreover, there was nothing in the material before me that suggests the Respondent dismissed the Applicant “because of ”having or exercising a relevant right under a workplace law or workplace instrument. I accept that the material before me shows that the Applicant wrote on various times about his opposition to the vaccination requirements. I am even prepared to accept that such correspondence constituted a “complaint” in relation to the Applicant’s employment.
Again, while leeway is to be given to a self-represented party and I also note the onus placed on respondents under s.361 of the FW Act, the only evidence before me is that the employment was terminated as a response to non-compliance with the Resources Industry Worker (Restrictions on Access) Directions.
The position with s.343 is similar. What is prohibited is action by a respondent with intent to coerce the other person not to (in summary) exercise a “workplace right”. As set out above, I do not consider there is any workplace right that has been identified, save perhaps to the right of “complaint”. There is nothing in the material before me indicating the Respondent was seeking to coerce the Applicant into not exercising a right of complaint (and, indeed, the opposite would appear to be the case as the Respondent actively sought comment and response from the Applicant on the relevant matters).
The position under s.348 is further removed from the material before me. Section 348 is directed at coercion against engaging in “industrial activity”. There is no evidence before me of such intent.
Section 351 prohibits (in summary) adverse action because of a person’s physical or mental capacity. There are other grounds of prohibition, but none appeared relevant. The reliance on vaccination status as a form of disability must be seriously doubted.[7] It is sufficient to note that an exception to s.351 exists if the action is taken because of “the inherent requirements of the particular position concerned”: s351(2)(b). Noting the various opportunities that the Applicant has had to put relevant material before me, there is no material before me that seriously suggests that the Respondent might have contravened s.351, including having regard to s.351(2)(b).
Perhaps the strongest factors in support of the Applicant’s claims are that he is a self-represented person for whom I am prepared to grant some leeway in how his case might be articulated in some different way in the future, together with the onus requirements under s.361. I would also observe that it is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[8] In respect of this latter point, it will often be the case the parties do not file detailed material concerning the merits of the claim at the stage of inquiry for an extension of time application. But even with the benefit of these assumptions, on the evidence before me, I consider that the Applicant’s claim is at best described as weak. That assessment might be overly generous.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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 can be considered exceptional.[10]
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[11]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[12]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[13]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[14]
The strongest factor in favour of the Applicant’s request for an extension of time are his reasons for delay. His evidence indicates a period of genuine personal hardship. However, I am not satisfied that evidence rises to such a level to fully explain the delay. In this respect, despite repeated opportunities to file and serve evidence, the Applicant did not do so. I am not prepared to accept the evidence that was given – which was at a high-level and containing a number of generalisations – as being a material contributor to the 21 day delay or even necessarily part of it.
I am also not satisfied that the Applicant’s evidence shows he was thwarted from completing his application by reason of the Perth registry or the telephone registry of the Fair Work Commission effectively being unavailable. While I am prepared to accept he might have experienced some frustration, perhaps, in the length of time he was experiencing to have a telephone call answered, no actual evidence was filed (noting again the numerous opportunities he had) and I am not sufficiently satisfied to accept the general statements that were proffered to me.
I consider that even treating the submissions made to me as evidence that, taken together, I am not satisfied that the reasons given adequately explain the delay that took place. I consider this factor tends against the interests of the Applicant.
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[15] The failure of the Applicant to take any action, other than the present application, tends against favouring the granting of an extension of time.
I consider that the factors concerning prejudice to the Respondent and fairness between the Applicant and others in a similar position are essentially neutral.
As to the merits of the application, for the reasons I have set out above, I consider this is a factor against favouring the granting of an extension of time.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An order[16] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
S Crack for the Applicant
S Rogers of MillsOakley for the Respondent
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
August 2.
[1] Coles Supply Chain Pty Ltd v Milford and Another [2020] FCAFC 152
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Cf, Kassam v Hazzard [2021] NSWSC 1320 at [200] – [206] (Beach-Jones J) and on appeal in Kassam v Hazzard [2021] NSWCA 299 at [105, albeit in a slightly different context of construing the statutory basis for public health orders.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[13] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[16] PR744641
Printed by authority of the Commonwealth Government Printer
<PR744436>
0
1
0