Barry Rapley v MSS Security Pty Ltd T/A MSS Security

[2018] FWC 1792

[2018] FWC 1792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Rapley
v
MSS Security Pty Ltd T/A MSS Security
(U2018/157)

COMMISSIONER WILSON MELBOURNE, 27 MARCH 2018

Application for an unfair dismissal remedy.

[1] This matter concerns an application made by Barry Rapley alleging unfair dismissal against his former employer, MSS Security Pty Ltd T/A MSS Security (MSS Security). Mr Rapley’s application was received in the Fair Work Commission on Friday, 5 January 2018.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 7 days outside of the time limit allowed.

[3] As a result, the matter proceeded to a hearing by me to determine the matter of whether an extension of time should be granted to Mr Rapley for the making of his application.

[4] For the reasons set out below, I am not satisfied there are exceptional circumstances for a further period to be allowed for the making of his application.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[6] The Respondent, MSS Security, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] The initial documentation from Mr Rapley indicated that while he had been verbally informed of his dismissal on 8 December 2017 he was formally notified of the termination on 12 December 2017. In the circumstances I am satisfied that his dismissal was both notified and took effect on Friday, 8 December 2017. As a result his application for unfair dismissal should have been made to the Commission by no later than Friday, 29 December 2017. For the reason that the application was lodged on Friday, 5 January 2018, Mr Rapley’s application is 7 days out of time.

[8] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Rapley, the Applicant and his daughter, Brandi House and the submissions made on behalf of the Respondent. In the hearing I conducted for this matter, Mr Rapley appeared with Ms House. MSS Security was represented by Ms Stefania Papalia, its HR/IR Manager WA.

BACKGROUND

[9] When Mr Rapley was dismissed he had been employed by MSS Security for more than three years. His job at the time of dismissal was to provide security services to one of the company’s clients at a remote site in the Pilbara region of Western Australia. Less than two weeks prior to the dismissal Mr Rapley had been driving a heavy vehicle which had been involved in an incident in which there had been some damage to property. That incident led to allegations being made against Mr Rapley together with a request that he “show cause” to why he should not be dismissed.

[10] After a short investigation, Mr Rapley was dismissed in a meeting that took place with his employer on Friday, 8 December 2018 which he attended with Ms House. Both provided evidence to the Commission that Mr Rapley was shocked about the situation and that following the meeting he and his family had a discussion about what should occur and concluded that an unfair dismissal application should be made to contest what he saw as an unfair dismissal.

[11] Because Ms House worked in the human resource management field and had some general understanding about the availability of an unfair dismissal remedy Mr Rapley effectively delegated to her the responsibility to make an application.

[12] At the time Mr Rapley’s was undergoing treatment for an illness which had been diagnosed in mid-2017 with the treatment being undertaken over the latter part of 2017. In addition, major surgery had been programmed for 11 January 2018. Before the illness had been diagnosed Mr Rapley had planned a significant family holiday at around the end of 2017 and the start of 2018. The fact of Mrs Rapley’s illness and programming of the surgery meant that the holiday had to be cancelled. The cancellation of the holiday lead to a dispute with an insurer which was ongoing at around the time Mr Rapley was considering an unfair dismissal application.

[13] The available evidence is both that Mr Rapley asked Ms House on several occasions about progress for the unfair dismissal application and that she kept forgetting owing to her being preoccupied at her own place of work, as well as her being under the misapprehension that there was 28 days in which to make an unfair dismissal application instead of the statutory period of 21 days.

[14] Ms House’s evidence to the Commission is that she learned about the 21 day time limit on the same day the application was lodged. She realised her mistake when she came to commence the application process and learned that there was a three week period for making an application instead of a four week period.

LEGISLATION

[15] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[16] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. Assessment of whether there are exceptional circumstances requires a consideration of all the relevant circumstances; no one factor need be found exceptional, it may be that in combination with other factors the circumstances may be regarded as exceptional. 3 The Full Bench has held the following in Nulty v Blue Star Group in relation to what may be found to be “exceptional circumstances”;

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”. 4

[17] The principle set out in Nulty regarding the determination of exceptionality was recently reaffirmed by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, which also emphasised the need for the Commission to treat each of the legislative criteria as a matter of significance in the decision making process (noting that Stogiannidis related to a general protections application, with the relevant legislative criteria drawn from s.366 and not s.394);

“[16]The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295:

‘26. 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. 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.’ (emphasis added)

[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

[18] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.” 5 (citations omitted)

[18] In considering whether an extension of time should be granted to Mr Rapley, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[19] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 6 The longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances.7It is not a precondition to the grant of an extension of time that a credible explanation is given for the entire period of the delay, however the reason for the delay is a factor that must be taken into account by the Commission in deciding whether there are exceptional circumstances, along with the other statutory criteria.8 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.9

[20] The “delay” to be considered in this case is the period it took after the prescribed period for Mr Rapley to lodge his application. In all, that period was a total of 7 days.

[21] Mr Rapley puts forward what are essentially three reasons for the delay in making his unfair dismissal application, two of which are interrelated. The primary reason for the delay in making the application appears to be that he delegated responsibility for making an unfair dismissal application to his daughter, Ms House who had a mistaken impression about the amount of time available to lodge such an application. In addition, Mr Rapley puts forward that a significant amount of stress was evident in his household at the time owing to his wife’s serious illness coupled with forthcoming surgery connected with the illness. The stress of Mrs Rapley’s illness caused his attention to be on her and not on an unfair dismissal application. Also connected with his wife’s illness and as an explanation for the delay in making the application Mr and Mrs Rapley needed to take a short holiday and focus on Mrs Rapley’s health and well-being, which also caused him to be focussed on matters other than making an unfair dismissal application.

[22] It can be accepted that a person who has been dismissed and has someone in their family with human resource understanding might reasonably turn to that person to advance their cause, including by preparing an application on their behalf. In the context of Mr Rapley’s matter and the three-part explanation he puts forward for the delay, his wife’s illness and his desire to look after her adds to the reason he may have asked Ms House to prepare an application. It is understandable that he would wish to provide such assistance as he could to his wife during this period. In this regard it is not put to the Commission that Mrs Rapley’s illness is at the high end of severity; merely that it was serious and had been ongoing and that she would be subjected to major surgery in about a month from the time that he had been dismissed.

[23] The general approach to consideration of claims of representative error are laid out in a number of earlier decisions of the Full Bench, including in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service, which reinforced both that the circumstance may be taken into account and that the applicant’s own conduct is a relevant consideration which may be taken into account as a reason for the delay in making an unfair dismissal application;

“Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital 10 remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency11 in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”  12

[24] MSS Security argued that in consideration of the role of representative error, primary consideration must be given to the behaviour of the Applicant to establish that they took all appropriate steps to action the application and did not contribute to the delay. In that regard they pointed to a decision by Deputy President Anderson in the matter of Napier v Thomas Foods International (Murray Bridge Division) 13 which in turn referred to the considerations referred to in the passage above. In Napier, the Deputy President was faced with a twofold reason for the delay in making an application; this calculation on the part of the Applicant as well as representative error by his solicitor. The applicant put forward that he believed the 21 day period did not include weekends. The applicant’s solicitor says he knew there was a 21 day time limit for filing applications but that he believed he had until four weeks after the termination letter to make the application. After assessing the evidence the Deputy President rejected key parts of the submissions made to him on behalf of the applicant, but disbelieved the applicant in other respects.14 The Deputy President found that the applicant knew there was a 21 day time limit of some description on his application; that the applicant could have followed that up with the solicitor at any time inside 21 days; and finally that he did not do so and simply left the matter with his lawyer.15

[25] In the circumstances before the Commission, I am satisfied that even though Ms House was not a representative in the sense that might be ascribed to a lawyer or union, that Mr Rapley nonetheless effectively delegated to her, as his daughter with some knowledge of human resources, responsibility for researching and drafting an application. I am also satisfied that Mr Rapley enquired of or reminded Ms House on at least several occasions of the need to make an application and that she reassured him each time that one would be made.

[26] Against this circumstance must also be the fact that Ms House did not exercise any great care in researching the field prior to the time that she actually came to make the application. She said to the Commission that although she works in human resources her expertise is in recruitment and to some extent performance management and that she has nothing to do with termination of employment. Given that is the case, and that she accepts that she knew there was a time-limit of some kind even though she thought it was a 28 day period, it could be assumed that Ms House would have at least exercised some care in the responsibility her father was asking her to carry, such as by checking the basics of eligibility for the making of an application for unfair dismissal remedy. Had she done so she would have immediately seen that the time period for making an application was 21 days and not, as she had assumed, 28 days.

[27] In relation to the lack of knowledge about their capacity to make an unfair dismissal application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance. 16 The same could be said for a representative, such as Ms House, who both had limited understanding of the Act as well as misunderstood the time limit and took no steps to check what the time period or other requirements may be.

[28] Overall I consider that while finely balanced the circumstances of Mr Rapley are such as not to combine to be a satisfactory explanation for the making of a late application.

[29] In forming this view I have had regard not only to the circumstances of Mr Rapley’s own case, but also to the approach taken in other matters before the Commission. It is to be noted in Nulty that the Full Bench was not satisfied that an extension of time should be granted to the applicant notwithstanding that her father had been hospitalised and she had to travel to another state in order to support him as well as that she was able to point to error on the part of advice provided to her by the Fair Work Ombudsman. 17 Mr Rapley’s circumstances may also be distinguished from the circumstances in Martin v Brisbane Plumbing and Sewer Pty Ltd in which an applicant was granted an extension of time for the making of an application otherwise made seven days out of time.18 The applicant in Martin had retained advice from a paid agent and delegated responsibility for the making of an application to the staff of the agent, two of whom personally suffered debilitating illness in the period before the application was made.19 There was some evidence before the Commission to the effect that at least one of the representatives had failed to properly read some of the material that had been sent which would have alerted them to the need to make an earlier application. The application ultimately came to be made when the applicant followed up with the agent about progress with his application which caused the staff to realise that it needed to be made urgently with it then being lodged that evening.20

[30] The circumstances of Martin are clearly distinguishable from Mr Rapley’s case. Firstly, the illness referred to on Mr Rapley’s part is within his own family and there is no evidence before the Commission to the effect that those circumstances were personally debilitating for either himself or Ms House. That is, the evidence of Mr Rapley’s case leads to the conclusion that while his wife’s circumstances were no doubt very worrying and even distressing, there is no evidence that either was incapacitated and thereby unable to proceed to do what they needed to do. Such is a different circumstance than featured within Martin, in which two separate staff members were away from the workplace for at least a period of time, which then in turn impacted upon the mutual understanding of who was required to do what, by when.

[31] Although Mr Rapley can be properly credited for being very concerned about his wife’s health, there is no evidence directly before the Commission that he could not have progressed the application himself. For her part, Ms House’s explanation to the Commission for the delay is not that she was unable to make the application, rather that her priorities were elsewhere, upon her own work, and that she made an incorrect assumption about the length of time that would be permitted for the making of an unfair dismissal application.

[32] Taken together, these matters do not amount to a satisfactory explanation for the filing delay. Accordingly, analysis of this criterion does not resolve in Mr Rapley’s favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[33] On the basis of the evidence before me, I am satisfied that Mr Rapley first became aware of his termination of employment on 8 December 2017, with the termination taking effect on the same day. This is therefore not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[34] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 21

[35] Consideration of this factor is also a neutral consideration for the reason that there is no evidence Mr Rapley took any action after his dismissal to dispute it, other than to discuss the matter with his family and to ask his daughter, Ms House to commence an unfair dismissal application against MSS Security.

4. Prejudice to the employer (including prejudice caused by the delay)

[36] The delay in the filing of the application is 7 days. The Respondent does not claim that the delay in lodging the application causes it prejudice, other than the additional time and expense objecting to the extension of time.

[37] While there has been some prejudice and disruption to the Respondent already with these proceedings, there will likely be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to require the Respondent to answer a significantly broader case than has already been mooted. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 22

[38] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[39] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[40] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, which was decided under earlier legislation, the Full Bench articulated why such position is adopted;

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 23

[41] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 24

[42] Mr Rapley’s case consists of a claim that the company was not entitled to make adverse findings against him in respect of four key allegations pertaining to an incident at a remote site on 28 November 2017 in which a heavy vehicle being driven by Mr Rapley was engaged in an incident causing minor damage, allegedly because of Mr Rapley’s inattentiveness. Mr Rapley appears to accept the essential facts of the matter that he was in charge of the heavy vehicle when it was involved in the incident, however his case against being dismissed is essentially that dismissal was too severe a punishment for what occurred. The essential facts of the matter taken from the allegations made against Mr Rapley include that he was reversing a heavy pumper; that in the course of doing so he lost sight of a “spotter” but continued to reverse the vehicle; and in doing so continued past the desired stopping point which led to the vehicle colliding with and causing damage to lockers. Mr Rapley’s argument against dismissal is that he was not familiar with the particular vehicle; that his emotional well-being had been seriously affected by other incidents at the site within the past two nights prior, including his attendance at an incident of self-harm by another person; and that MSS Security failed to adequately take into account his personal situation including the effect that his wife’s illness was having on him.

[43] MSS Security strongly oppose the characterisation of Mr Rapley has put forward about the merits of his claim.

[44] Noting however that the obligation at this stage of the proceedings is to ascertain whether there the applicant has an arguable case on behalf of the Applicant; or whether in the alternative it appears the Applicants case either has very strong or very weak merits on its face, consideration of the merits of Mr Rapley’s case only leads to the proposition that his argument of unfair dismissal is above the level at which it could be said that there are no reasonable prospects of success.

[45] Accordingly, this criterion is a neutral consideration in whether an extension of time should be granted to Mr Rapley for the making of his application.

6. Fairness as between the person and other persons in a similar position

[46] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 25 I consider the question of general fairness as between all applicants would likely lead to a neutral finding. In relation to the question of fairness as between applications arising out of the same employer, there is no material before me of another person presently before the Commission being dismissed by the same employer for the same underlying issue.26

[47] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Rapley.

[48] As a result Mr Rapley’s application for unfair dismissal must be dismissed and an order to that effect is issued with this decision.

COMMISSIONER

Appearances:

Mr Barry Rapley on his own behalf.

Ms Stefania Papalia, for the Respondent.

Hearing details:

2018.

Melbourne:

23 March.

Printed by authority of the Commonwealth Government Printer

<PR601517>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 4   Nulty v Blue Star Group (2011) 203 IR 1, [13].

 5   Stogiannidis [2018] FWCFB 901.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 7   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].

 8   Stogiannidis [2018] FWCFB 901, [40] – [41].

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; affirmed in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22]

 10 (1997) 74 IR 413.

 11 (1998) 105 IR 1 at 6.

 12   McConnell v A & PM Fornataro (t/as Tony’s Plumbing Service)[2011] FWAFB 466, (2011) 202 IR 59, [35].

 13   [2018] FWC 275, [41].

 14 Ibid, [18] – [22].

 15 Ibid, [42] – [43].

 16   Nulty v Blue Star Group[2011] FWAFB 975, (2011), 203 IR 1 at [14].

 17 Ibid, [5], [25] – [27], [65].

 18   [2017] FWC 6032.

 19 Ibid, [11] – [15]; [24].

 20 Ibid, [12] – [13].

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 22   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 23   (2000) Print T2421 (Judge Guidice, Aston SDP, Commissioner Gay, 10 November 2000); [2000] AIRC 540, [14].

 24   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 25   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

 26   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].