Artemios Christopoulos v Qantas Airways Limited
[2022] FWC 1429
•23 JUNE 2022
| [2022] FWC 1429 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Artemios Christopoulos
v
Qantas Airways Limited
(U2022/4508)
| COMMISSIONER PLATT | ADELAIDE, 23 JUNE 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application refused.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Artemios Christopoulos (the Applicant) a further period for his unfair dismissal application (Application) to be made against Qantas Airways Limited T/A Qantas (Qantas or the Respondent).
Background
Mr Christopoulos has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment. In his Application, the Applicant notes that he was unsure of the exact date of his termination, but that he believed it to be in late February 2022.
On 13 May 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 17 February 2022 and raised a jurisdictional objection on the basis that the application was lodged out of time. During the Hearing, the Applicant accepted 17 February 2022 as the date of his dismissal.
The application was lodged on 19 April 2022. It is not dispute that the Applicant was lodged 40 days out of time.
On 25 May 2022, the Applicant filed an outline of submissions and witness statements in relation to the extension of time issue.
On 26 May 2022, the matter was allocated to my Chambers, and I issued directions and advised that the extension of time issue would be considered at a Hearing, by teleconference, on 8 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Acknowledging that the Applicant had already filed an outline of submissions and witness statements, the Applicant was invited to provide any further material in respect of the extension of time issue by no later than 3 June 2022. The Applicant indicated that he wished to rely on the materials filed on 25 May 2022.
Hearing
The Hearing was conducted by way of telephone conference on 8 June 2022. A sound file record of the teleconference was kept. Mr Christopoulos was represented by Mr Stephen Purvinas of the Australian Licenced Aircraft Engineers Association (ALAEA) at the Hearing, whilst Qantas was represented by Ms Jessica Farah.
Mr Christopoulos[3] and Mr Purvinas[4] both submitted a statement and gave evidence. Mr Sean Morgan (Solicitor for ALAEA) also gave evidence.
Mr Purvinas’ evidence (which was provided first and in the absence of the Applicant) is summarised as follows:
· In November 2021, Mr Christopoulos sought support from the ALAEA.
· Mr Christopoulos’ doctor informed him that communication with the Respondent could cause him further harm and advised him not to work or communicate with his employer in any way.
· Mr Christopoulos left the ALAEA in charge of handling his affairs with the Respondent.
· On 30 November 2021, Mr Purvinas emailed the Respondent and notified them of the following:
“Hi Dominic,
I represent Artemios in relation to a medical condition he is suffering. He is unable to attend work until at least 11/12/2021. Certificates are attached.
He has specifically been advised to stay away from anything work related. Can you please make sure Qantas do not contact him. It may make his condition worse.
Cheers
Steven Purvinas”
· On 13 December 2021, Mr Purvinas forwarded a further medical certificate to the Respondent, which notified them that the Applicant remained unfit for work until 24 December 2021.
· On 31 March 2022, the Applicant accessed his bank account and noticed that he had not been paid. The Applicant requested that Mr Purvinas contact the Respondent to find out why he had not been paid, which he did on that day.
· Later on 31 March 2022, the Respondent advised Mr Purvinas that his employment had ceased. Mr Christopoulos then instructed Mr Purvinas to lodge an unfair dismissal claim. About 10 days later, Mr Christopoulos contacted the ALAEA to follow up on the lodgement of the claim (this last communication was not corroborated by Mr Christopoulos in his evidence).
· In the period post 31 March 2022, the ALAEA experienced a heavy workload, and the earliest that they were able to file the application was 19 April 2022.
Mr Christopoulos’ evidence is summarised as follows:
· From October 2021, he was suffering from mental health issues. Between October 2021 and 24 December 2021, he provided medical certificates to the Respondent which indicated that he was suffering from a medical condition. It is noted that no medical evidence as to the nature of that condition or its effect on Mr Christopoulos’ capacity to interact with and/or submit an unfair dismissal claim was submitted despite an invitation to do so.
· Mr Christopoulos stated that his health required him to reside with his parents from the end of November 2021 to the end of February 2022. During this period, he did not check for mail which was delivered to the residential address that he had supplied to the Respondent. Mr Christopoulos contended that communication with the Respondent would be harmful to him.
· Mr Christopoulos did not change his mobile phone number prior to his dismissal.
· Mr Christopoulos did not give any evidence about his use of emails.
· In late March 2022, he noticed he had not been paid by the Respondent, and as such asked the ALAEA to make an enquiry for him.
· On or about 31 March 2022, he became aware that he had been dismissed, and within a few days instructed Mr Purvinas to submit an unfair dismissal claim. Mr Christopoulos did not contact Mr Purvinas after that time.
Mr Morgan did not file a written witness statement but gave evidence at the Hearing and was cross-examined. Mr Morgan had little recollection about the specifics of the Applicant’s matter, but advised the Commission that in the period between 31 March and 19 April 2022 (the period between the Applicant instructing the ALAEA to lodge a claim and the Application being lodged), he had just returned from a period of leave and was inundated with COVID-19 disputes involving ALAEA members. I accept this position.
Qantas filed a witness statement from Mr Jason Bird[5], Manager of Engineering Operations Sydney. Mr Bird was cross-examined at the Hearing. Mr Bird’s relevant evidence is summarised as follows:
· On 20 September 2021, the Qantas Group finalised and published its COVID-19 Vaccination Policy (the Policy). The Policy required employees (including the Applicant) to be fully vaccinated against COVID-19 with an approved vaccine and to provide evidence of vaccination by a certain date.
· The compliance date for the Applicant was 15 November 2021. On that day, the Applicant started a period of personal leave.
· The Respondent received the following medical certificates from the Applicant:
· A medical certificate which certified the Applicant as “unable to attend work” from 15 November 2021 until 30 November 2021 on the basis of a “medical condition”.
· A medical certificate which certified that the Applicant was “unable to attend work” from 25 November 2021 until 10 December 2021 on the basis of a “medical condition”.
· A medical certificate which certified that the Applicant was “unfit for work” from 10 December 2021 until 24 December 2021 on the basis of a “medical condition”.
· The Applicant did not advise of the precise nature of the Applicant’s medical condition or why his condition restricted him from accepting communications from Qantas.
· The Applicant did not provide any evidence of vaccination by the compliance date. The Respondent therefore made a number of attempts to contact the Applicant to request that he upload the necessary evidence.
· The Respondent received an email on 30 November 2021 from ALAEA which advised them that the ALAEA were representing the Applicant “in relation to a medical condition he is suffering”.
· After multiple attempts to contact the Applicant, the Respondent commenced a show cause process by sending the Applicant a letter on 3 December 2021, in which the Applicant was requested to provide a written response by 8 December 2021. The show cause letter was sent by email and by registered post to the Applicant’s nominated address.
· On 12 December 2021, the Applicant telephoned the Respondent’s Maintenance Production Controller to advise that he would be unfit for work, and on 13 December 2021, the Respondent received a medical certificate from the Applicant which stated that he was unfit for work from 10 December 2021 to 24 December 2021.
· On 11 January 2022, Mr Bird emailed the Applicant, noting that the Applicant’s latest medical certificate had expired on 24 December 2021 and that Qantas had not received any further medical certificates from the Applicant, and provided a final opportunity to respond to the show cause letter by 14 January 2022. The Applicant was advised that if he did not provide a response, a decision would be made based on the information available to the company at the time. No response was received.
· On 15 February 2022, the Applicant was invited to an outcome meeting on 17 February 2022. The Applicant did not attend the outcome meeting.
· On 17 February 2022, both a text message and an email were sent to the Applicant electronically, and a letter was posted to the Applicant’s home address, advising that his employment had been terminated with immediate effect.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[6]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[7] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[8]
The Respondent used three mechanisms to convey its decision to dismiss the Applicant. I accept that the Applicant would not have received mail directed to his residential address. The Applicant gave evidence that his mobile phone number did not change. I am not persuaded that the Applicant would not have received a text message, or an email sent to him by the Respondent. Such conduct presented the Applicant with a reasonable opportunity to find out that his employment had been terminated. There was no evidence before me that the Applicant was not receiving text messages or emails. I am not persuaded that the first time the Applicant could have reasonably been aware of his dismissal was 31 March 2022.
I find that the date of the dismissal was 17 February 2022.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[9] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[10] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[11]
“[38] As we have mentioned, 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 enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The Applicant contends that he was not aware of his dismissal until 31 March 2022. I do not accept the accuracy of that statement. It pre-supposes that the Applicant was not receiving emails or text messages and was oblivious to the deposit of a $25,000 termination payment into his bank account on or about 1 March 2022.
On or about 31 March 2022, the Applicant instructed Mr Purvinas to file an unfair dismissal application. This application did not get filed until 19 April 2022. I accept that the ALAEA and its legal officer was busy and that their failure to recognise the importance of this matter and afford the required level of attention amounts to representative error. Whilst this may be true, I am also required to consider the contribution of the Applicant.
There is a wealth of case law which explores the limits of representative error as a credible reason for delay in extension of time matters.
The Full Bench in Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 summarises the overall approach as follows:
“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(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 carry out 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.”
In Diotti v Lenswood Cold Stores Co-Op Society [2015] FWC 7659, Deputy President O’Callaghan explored representative error as a reason for the delay in a situation in which the Applicant did nothing to challenge her dismissal for 17 days before contacting her union. The relevant discussion is below:
“[14] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.
[15] I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti’s delay in bringing the matter to the attention of United Voice was of her own making.
[16] I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.”
Finally, the Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 made the following observations:
“[30] There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.”
There is a dispute between Mr Purvinas and the Applicant as to contact by the Applicant post the original instruction to file an unfair dismissal application on 31 March 2022. I am inclined to prefer the evidence of the Applicant and find that he did not contact Mr Purvinas after his instruction to file the claim despite a period of almost three weeks elapsing. In my view, the Applicant is not blameless in this matter.
The Applicant has not provided an acceptable reason for the delay. This is a factor weighing against a finding of exceptional circumstances and the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
I do not accept that the Applicant was not aware of his dismissal until 31 March 2022. I believe it is more likely he became aware of his dismissal on the date he was dismissed or, in the alternative, shortly after the receipt of his termination pay on 1 March 2022. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[12]
The Applicant took no action to contest the dismissal outside of lodging his unfair dismissal application.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
There was no submission that the late filing represents prejudice to the employer and accordingly I have treated this as a neutral factor.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have not considered merits as a strong factor in determining the existence of exceptional circumstances.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[13] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
Despite the submissions of the Applicant, there is insufficient evidence before me to suggest that the Applicant’s circumstances are sufficiently similar to that of any other person. The fact that this was a dismissal arising from the application of a COVID-19 policy is insufficient to enliven this consideration. If anything, the factual circumstances in this case appear to be novel. In my view, this is a neutral factor.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The Application is dismissed.
COMMISSIONER
Appearances (by telephone):
S Purvinas for the Applicant
J Farah for the Respondent
Hearing details:
2022
Adelaide:
June 8.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Exhibit A2
[4] Exhibit A1 (including attachments)
[5] Exhibit R1 (including attachments)
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[7] [2011] FWAFB 975
[8] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[9] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[10] [2016] FWCFB 349
[11] [2018] FWCFB 3288 at [35]-[45]
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[13] [2016] FWCFB 6963
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