Bekim Jusuf v Drillcut Pty Ltd

[2018] FWC 6236

[2018] FWC 6236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Bekim Jusuf
v
Drillcut Pty Ltd
(C2018/3844)

COMMISSIONER LEE MELBOURNE, 8 OCTOBER 2018

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

Introduction

[1] Mr Bekim Jusuf (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The Respondent to the application is Drillcut Pty Ltd (the Respondent). The application concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant on 28 March 2018, in contravention of the general protections set out in Part 3-1 of the Act. It is not in dispute that the termination of employment took effect on 28 March 2018. Therefore the application should have been lodged on or before 18 April 2018. The application was in fact lodged with the Commission on 12 July 2018, 85 days late. As the application is made outside the prescribed period in s.366(1) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.

[2] The matter was listed for Objections Conference/Hearing by Telephone before me on 9 August 2018. The Applicant appeared on his own behalf. Ms Andrea Willits was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Background and evidence

[3] The Applicant commenced employment with the Respondent on 5 March 2018 as a Senior Sales Representative at the Respondent’s Sydney site.

[4] The Applicant was involved in a motor vehicle accident on 21 March 2018 performing his duties for the Respondent. The Applicant advised the Respondent that day that he was involved in a motor vehicle accident.¹ The Applicant also emailed Mr Tim Phillips, General Management for the Respondent and another employee, Ms Katie Worcester, to ask whether the Respondent had an accident procedure sheet available for Sales Representatives to keep in their vehicles.² Mr Phillips was copied into an email chain between the Applicant and Ms Worcester in relation to the accident on 21 March 2018.³ The Applicant left work early on 21 March 2018 to attend a doctor’s appointment and was advised to have an MRI scan.⁴ Mr Phillips’ evidence was that the Applicant telephoned him on 22 March 2018 to advise him that he was going to have an MRI scan.⁵ The Applicant also advised the Sydney Sales Team via email on 22 March 2018 that he was having an MRI scan in the morning on 23 March 2018.⁶ Mr Phillips claims that the Applicant did not raise the motor vehicle accident with him again during his employment or at any time attempt to make a claim for worker’s compensation during his employment.⁷

[5] However, the Applicant claims that he attempted to contact Mr Phillips a number of times between 23 – 27 March 2018 in relation to the pain and discomfort he was feeling as a result of the accident but that Mr Phillips did not return his calls.⁸ During the hearing, the Applicant stated he was a bit vague on the actual dates, but confirmed he tried to make contact with Mr Phillips.⁹ Further, Mr Phillips claims that he did not receive any calls or voicemail messages from the Applicant about pain and discomfort he was experiencing on 23 – 27 March 2018.¹⁰ On 26 March 2018 at 8:04 pm the Applicant sent an email to Mr Phillips requesting that he call him on 27 March 2018 as he wished to discuss something with him and Mr Phillips responded at 8:22 pm indicating he would call him.¹¹ Mr Phillips claims on 27 March 2018 he had a telephone conversation with the Applicant about a Weekly Call Planner document he had created and the Applicant did not raise the motor vehicle accident or the pain he was experiencing. The Applicant emailed Mr Phillips that day in relation to their discussion and attached a call report document. The Applicant did not make reference to pain related to the motor vehicle accident in this email.¹² Mr Phillips claims that that Applicant did not say to him at any time that he required time off work due to pain, beyond seeing his doctor on 21 March 2018 and to attend the MRI scan on 23 March 2018.¹³

[6] The Applicant claims that he was dismissed one week after the motor vehicle accident, which he asserts was the reason for his dismissal. It is not in contest that the Applicant was dismissed by the Respondent on 28 March 2018, effective immediately. The letter of termination states that the Applicant’s probationary period was due to end on 5 September 2018, however the Respondent had decided not to continue his employment and as a result his employment would end effective from 28 March 2018.¹⁴

[7] The Respondent submits that the Applicant was dismissed from his employment due to a claimed downturn in business at the Sydney site of the Respondent. Mr Phillips gave evidence that in November 2017 the Respondent purchased a business and it was intended that this business would become the Sydney site of the Respondent.¹⁵ However, during March 2018 it became apparent that there were a number of problems with the business and on 27 March 2018 a financial review of the Sydney site was conducted and demonstrated a loss for the month of March 2018 of approximately $55,000. On 28 March 2018, a meeting of the Respondent’s management was held and it was determined that the Sydney site could not support two sales representatives and the Applicant’s position would have to be terminated. Mr Phillips met with the Applicant that day and provided him with the letter of termination. However, during the hearing Mr Phillips gave rather vague evidence that there were other performance issues and rumours that were brought to light, but did not form the complete judgement.¹⁶ There was a reference to timesheet discrepancies and potentially other reasons that Mr Phillips did not want to disclose.¹⁷ On re-examination, Mr Phillips confirmed that the dismissal was a business decision and the “rumours” were “considered in one’s mind” and were not part of the termination letter.¹⁸ In his witness statement, Mr Phillips claims that he advised the Applicant that his dismissal was a management and financial decision and that the Applicant did not ask whether he was being terminated due to the motor vehicle accident on 21 March 2018, nor was it mentioned by either of them at any stage during the meeting.¹⁹ During the hearing Mr Phillips confirmed he had no recollection of the accident being mentioned during the meeting.²⁰ The Applicant’s evidence was that when he was given the letter of termination and after reading the document he asked Mr Phillips if it was due to the motor vehicle accident and Mr Phillips replied “no we are paying you too much money”.²¹ Mr Phillips disputes saying these words to the Applicant during the meeting.²² Mr Phillips evidence is that the Applicant’s pain and discomfort in relation motor vehicle accident or a worker’s compensation claim was not raised with him until 13 April 2018 when the Applicant sent a text message to him indicating he had sustained injuries in the accident. The Applicant also sent a Motor Vehicle Claim Form to Mr David Phillips, Director of the Respondent that day.²³ On 17 April 2018 the Applicant emailed Mr Tim Phillips and Mr David Phillips indicating that he would like to have treatment on his left arm and requested that they follow up with their insurance company.²⁴

[8] In written material filed prior to the hearing, the Applicant stated that “I originally mailed out unfair dismissal forms that went missing and due to the pain, lack of sleep, trying to find another job, I forgot about it until June 2018” at which stage he contacted the Commission by phone and was advised that the Commission had not received his application.²⁵ The Applicant also referred to contacting the Applicant’s insurance company and medical practitioners in relation to the accident and workers compensation after his employment ended.²⁶

[9] During the hearing, the Applicant gave evidence that he mailed the unfair dismissal application in April 2018. He stated he believed it would have been about 13 April 2018 because he attended his solicitor on 12 April 2018.²⁷ The Applicant agreed he could not be sure when he mailed the application but it was in April and he assumed it was 13 April 2018.²⁸ He also thought it could have been 14 April 2018.²⁹ The unfair dismissal application was not sent to the Commission via registered mail, which the Applicant stated he regretted.³⁰

[10] During the hearing, the Applicant confirmed that the unfair dismissal application was not prepared on a computer and he did not keep a copy of the application.³¹ The Applicant stated that he contacted the Commission in June 2018 in relation to his unfair dismissal application by telephone because he had not heard anything and with everything else going on he had forgotten about it.³² The Applicant could not remember when in June he contacted the Commission but stated that it was towards the end of the month.³³ The Applicant stated that after being advised by the Commission that his unfair dismissal application had not been received he resent the application by email that day or the next day.³⁴ In written material filed prior to the hearing, the Applicant stated that the Commission advised him that he could not use the unfair dismissal form and should look at the general protections forms.³⁵

[11] During the hearing, it became apparent that the Applicant had lodged an unfair dismissal application (U2018/6940) with the Commission via email to the Sydney Registry on 4 July 2018. Further, there was a file note recorded on 6 July 2018 by a staff member of the Commission which stated that the Applicant was contacted by telephone to confirm employment dates and the Applicant confirmed he was employed for a period of 3 weeks and the Applicant agreed to withdraw the application. The email dated 4 July 2018 from the Applicant to the Sydney Registry attaching the unfair dismissal application and a copy of the file note recorded 6 July 2018 were provided to parties subsequent to the hearing and an opportunity to provide any submissions in relation to these documents was provided to the parties.

[12] This general protections application was lodged by the Applicant with the Commission on 12 July 2018.

The law to be applied

[13] Section 366(1) of the Act provides as follows:

“(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).”

[14] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person 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 person and other persons in a like position.”

Consideration

[15] I have considered the evidence and submissions, including the written submissions that were filed and the oral submissions made during the hearing against the criteria in s.366(2) of the Act.

[16] Subsection 366(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd³⁶, where the Full Bench stated that:

“[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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”³⁷

[17] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

Matters to be taken into account pursuant to section 366(2)

[18] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[19] In relation to the reason for the delay, the Applicant’s evidence was that he sent an unfair dismissal application by post to the Commission around 13 April 2018 that was not received by the Commission, which he forgot about until June 2018 because of pain, lack of sleep and trying to find another job.³⁸ Further, that he was not aware of the law in relation to general protections and if he was made aware of it, he would have lodged a general protections application instead of an unfair dismissal application.³⁹

[20] The Applicant’s evidence is that he sent an unfair dismissal application to the Commission by post around 13 or 14 April 2018 after he spoke to a solicitor on 12 April 2018 and that he then “forgot” about the application and contacted the Commission towards the end of June. The Applicant was extremely vague about the circumstances surrounding his sending of the original unfair dismissal application. He did not keep a copy of it and could provide no evidence that he sent it. I have significant reservations about the Applicant’s evidence that he did so. However, the Applicant has given sworn evidence that he did send the application and so I accept the evidence.

[21] The Applicant’s evidence was that he contacted the Commission in June 2018 and was advised that the unfair dismissal application was not received. The Applicant was very vague on cross-examination as to when in June he contacted the Commission. He could not recall if it was early or late June or what date he thought it was.⁴⁰ In any case, the Applicant thought he re-sent the application that day or the next day. The Applicant in fact lodged an unfair dismissal application via email on 4 July 2018. This suggests that if he re-sent the application that day or the next day after speaking with the Commission then he did not in fact speak to the Commission until 3 or 4 July 2018. He then withdrew the application on 6 July 2018 following a telephone conversation with the Commission in relation to his length of service with the Respondent, which was less than 4 weeks. The Applicant lodged this general protections application in the following week on 12 July 2018.

[22] The Applicant’s evidence during the hearing was that he has been incapacitated from the date of the motor vehicle accident until, at least, the date of the hearing. He confirmed that he was “not talking full incapacity” and that he was still able to work but the extent of the incapacity was that he could not lift above 2 - 5 kilos and prolonged driving and sitting down was an issue.⁴¹ The Applicant provided a certificate of capacity which he had to submit to the Applicant’s insurance company.⁴² The certificate of capacity states that the Applicant’s capacity for activities is 2 - 3 kilos maximum for lifting/carrying capacity and pushing/pulling ability and that the Applicant “has capacity for some type of work” from 21 March 2018 – 20 April 2018 for 8 hours per day 5 days a week.

[23] During the hearing the Applicant gave evidence that he was on medication known as Lyrica, he had sleepless nights for four or five months after the motor vehicle accident and had seen his doctors many times because he was suffering depression as a result of what happened.⁴³ In written material filed prior to the hearing the Applicant’s evidence was that he contacted medical practitioners and the Respondent’s insurance company in relation to the motor vehicle accident. The Applicant’s evidence in relation to his circumstances after his employment ended was as follows:

“In all of the running around, phone calls, emails, lack of sleep, pain and suffering, severe headaches, physiotherapy, trying to find a new job, supporting a young family was getting too much for myself and couldn’t think straight at times not to mention I was prescribed Lyrica which the doctor advised I only take at night to try and make me sleep as they are very strong and can affect your driving ability.”44

[24] The Applicant also claimed that he advised the Respondent of his motor vehicle accident when it occurred and that they had a duty of care to advise their insurance company within 48 hours in relation the accident which they did not do and this is why he had been running around with sleepless nights.⁴⁵ The Applicant also asserted that he had a mental incapacity and was feeling “angry, losing control and things like that. Just snapping”.⁴⁶

[25] The Applicant also filed a witness statement of his brother Mr Dylan Jusuf, which stated, among other things, that he had witnessed the Applicant’s lack of sleep, depression and physical and mental state worsen from the date of the accident. Further, that the Applicant’s medication has given him “extreme mood swings”.⁴⁷

[26] The Applicant’s evidence was that he advised his doctor that he was suffering from depression, feeling angry and losing control. I do not have any evidence before me of any alleged mental incapacity beyond the Applicant’s evidence and his brother’s evidence and the certificate of capacity does not detail any alleged mental incapacity.⁴⁸

[27] The Applicant did not work between 28 March 2018 and 1 May 2018 and gave evidence that he was at home during this period and started work on 1 May 2018.⁴⁹

[28] The Applicant gave evidence that he could have lodged a general protections application within time if he “had known the laws and the rules and regulations” but he didn’t and stated that “if I was made aware of it, I would have, instead of lodging the unfair dismissal”.⁵⁰ The Applicant confirmed the reason he did not lodge a general protections application within 21 days was because he did not know about the law and if he had known he would have posted that form instead of an unfair dismissal application.⁵¹ This claim is made by the Applicant despite him also claiming that he saw a solicitor on 12 April 2018.

[29] I have taken into account all of the evidence as to the reasons given for the delay. I do not accept that the posting of the unfair dismissal application around 13 April 2018 is an acceptable reason for the delay. It is apparent that the Applicant wanted to lodge an unfair dismissal application at first instance, not a general protections application the subject of these proceedings. As the Applicant was, on his own evidence, capable of seeing a solicitor and then lodging an unfair dismissal application within the required timeframe, he could have lodged a general protections application within that same timeframe. I am not satisfied that the Applicant has provided an acceptable reason for what is a significant delay in lodging the general protections application. While the Applicant claims that he sent an unfair dismissal application to the Commission by post within the statutory timeframe, it was the incorrect application, he forgot about it and it took him over two months to follow up with the Commission.

[30] The Applicant points to a number of reasons why he was incapacitated during this period and the reason he forgot about the unfair dismissal application which I have taken into account. However, on his own evidence the Applicant was able to post an unfair dismissal application around 13 April 2018 and contacted the Respondent on 13 April 2018 in relation to the motor vehicle accident and emailed them a Motor Vehicle Claim Form. Further, on 17 April 2018 emailed Mr Tim Phillips and Mr David Phillips indicating that he would like to have treatment on his left arm and requested that they follow up with their insurance company. Lastly, on his own evidence he was fit for work and working as of 1 May 2018.

[31] The Applicant followed up with the Commission towards the end of June, or more likely on the Applicant’s own evidence, in early July in relation to this unfair dismissal application, he then lodged the application on 4 July 2018 via email and after withdrawing the application on 6 July 2018 he took a further 5 days to lodge his general protections application. Overall, I am not satisfied that the Applicant was incapacitated to the extent that he was unable to file a general protections application until 12 July 2018. In fact, the Applicant confirmed the reason he did not lodge a general protections application within 21 days was because he did not know about the law. As Deputy President Asbury found in JulianNicolas Jr v Nortask Pty Ltd⁵² ignorance of an option is not, of itself, an exceptional circumstance.⁵³

[32] Overall, I am not satisfied there is an acceptable reason for the significant delay. This weighs against a finding that there are exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[33] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.⁵⁴

[34] The Applicant states that when he was handed the letter of termination during the meeting on 28 March 2018 he queried the reason for the dismissal with Mr Phillips as reasons were not stated in the letter and he asked if it was because of the motor vehicle accident. When advised by Mr Phillips that it was a financial decision he said that he found it “very hard to believe”.⁵⁵ Mr Phillips disputes that the Applicant referred to the motor vehicle accident during the meeting.

[35] The Respondent submits that the Applicant did not raise the motor vehicle accident with the Respondent at the termination meeting and it was not raised again until 13 April 2018.⁵⁶ Further, the Respondent relies on a text message sent by the Applicant to Mr Phillips on 29 March 2018, in support of the submission that the Applicant did not dispute the dismissal but instead accepted the dismissal. In this text message the Applicant stated, among other things, that he “was and still am frustrated of course but business decisions come first”.⁵⁷

[36] As stated above, I accept the Applicant’s evidence that he posted an unfair dismissal application to the Commission around 13 April 2018. Then after contacting the Commission in late June or early July 2018 and being advised that it was not received he lodged an unfair dismissal application by email on 4 July 2018. I note that in forgetting about sending an unfair dismissal application and following up over two months later, it could be said that the Applicant was not actively disputing his dismissal. Notwithstanding this, in the circumstances I am satisfied that in posting the unfair dismissal application in mid-April and lodging an unfair dismissal application via email on 4 July 2018 the Applicant did take action to dispute the dismissal. This is a factor which weights in favour of a finding of exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[37] The Applicant submits that he does not believe there will be prejudice to the employer as he does not believe they gave him an opportunity to recover from his injury. The Applicant also refers to breaches of the Act and state workers compensation acts and regulations.⁵⁸ The Respondent submits that a long delay will give rise to a general presumption of prejudice and that there would be prejudice to them if an extension of time was granted.

[38] I am satisfied that the significant delay gives rise to a general presumption of prejudice to the employer. However, there is no specific evidence of prejudice. Overall, this factor weighs against a finding of exceptional circumstances.

(d) Merits of the application

[39] The Applicant states that he was dismissed one week after the motor vehicle accident and claims that this was the reason for his dismissal. It is not in contest that the Applicant was dismissed by the Respondent on 28 March 2018, effective immediately. The Applicant in his application asserted that the adverse action included his dismissal in breach of s.352 of the Act. Section 352 of the Act provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[40] The Respondent submits that the application is wholly lacking in merit and has very poor prospects of success. The Respondent submits there is simply no evidence, other than a tenuous temporal connection, that the Applicant was dismissed for his involvement in the motor vehicle accident on 28 March 2018.⁵⁹ As detailed above, the Respondent submits that the Applicant was dismissed due to a number of issues at the Sydney site and the financial loss in March 2018. The Respondent submits that the Applicant did not take sick leave on the date of the motor vehicle accident or when he attended for an MRI scan and that there is therefore a strong argument that the Applicant was not suffering from an illness of the kind prescribed by the Regulations and is consequently not afforded the protection under s.352 of the Act.⁶⁰

[41] Mr Phillips gave evidence during the hearing that the ultimate decision to dismiss the Applicant was a business decision as the Respondent’s business was not profitable.⁶¹ However, Mr Phillips also made reference to other reasons and/or rumours which were there but did not form part of the reason for the dismissal, including that the Applicant had put inaccurate times on his timesheet, reports of inappropriate language and things that were reported that where not “standard conduct” but he did not wish to disclose any other reasons.⁶² He confirmed these other reasons were in consideration, but they were not the “ultimate reason” for dismissal.⁶³ Mr Phillips said that irrespective of these other reasons, the Applicant still would have been dismissed on 28 March 2018 as it was a business decision based on profitability but “those rumours were considered in one’s mind” but did not form part of the basis for dismissal and were not part of the termination letter.⁶⁴

[42] There is a dispute between the Applicant and Mr Phillips in relation to whether the motor vehicle accident was mentioned during the termination meeting on 28 March 2018. Mr Phillips claims that he advised the Applicant during the meeting that it was a management and financial decision based on profitability of the Sydney site.⁶⁵ The Applicant submits he does not believe a real or specific reason was given to him and the letter of termination does not provide a reason beyond stating that his probationary period was due to end on 5 September 2018, however the Respondent had decided not to continue his employment.⁶⁶

[43] For the purposes of determining an extension of time application, the Commission should not embark on a detailed consideration of the substantive application.⁶⁷ Considering the merits of the application overall and based on the materials before me, the application is not without merit. The vague evidence of Mr Phillips as to what was in his mind when effecting the dismissal raises more questions than it answers. This factor weighs in favour of a finding of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[44] The consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past. ⁶⁸ There were no particular submissions made that were relevant to this factor. This is a neutral consideration.

Conclusion

[45] I am not satisfied there is an acceptable reason for the rather significant delay and this weighs heavily against a finding of exceptional circumstances. Consideration of prejudice to the employer weighs against a finding of exceptional circumstances. I am satisfied the Applicant took action to dispute the dismissal and consideration of the merits of the application both weigh in favour of a finding of exceptional circumstances. The factor in s.366(2)(e) is a neutral consideration. Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances that would warrant granting an extension of time. Accordingly, the application is dismissed.

[46] An order will be issued concurrently with this decision.

COMMISSIONER

Appearances:

B Jusuf on his own behalf for the Applicant

A Willits for the Respondent

Hearing details:

2018

Melbourne (Telephone Hearing):

9 August.

Final written submissions:

16 August 2018

Printed by authority of the Commonwealth Government Printer

<PR701133>

1 PN95, Exhibit R1, Statement of Tim Phillips at [18], Exhibit A1, Applicant’s bundle of documents at p.1

2 Exhibit R1, Statement of Tim Phillips, Exhibit TP1 at p.25

3 Exhibit R1, Statement of Tim Phillips at [22], Exhibit TP1 at p.22-25

4 Exhibit A1, Applicant’s bundle of documents at p.1

5 Exhibit R1, Statement of Tim Phillips at [23]

6 Exhibit R1, Statement of Tim Phillips at [24], Exhibit TP1 at p.26

7 Exhibit R1, Statement of Tim Phillips at [26]

8 Exhibit A1, Applicant’s bundle of documents at p.1

9 PN77

10 Exhibit R1, Statement of Tim Phillips at [28] – [30]

11 Exhibit R1, Statement of Tim Phillips, Exhibit TP1 at p.28-29

12 Exhibit R1, Statement of Tim Phillips at [30] – [32], Exhibit TP1 at p.30

13 Exhibit R1, Statement of Tim Phillips at [33]

14 Exhibit A1, Applicant’s bundle of documents at p.6

15 Exhibit R1, Statement of Tim Phillips at [4]

16 PN388

17 PN391– PN392

18 PN431 – PN433

19 Exhibit R1, Statement of Tim Phillips at [12] – [15]

20 PN347

21 Exhibit A1, Applicant’s bundle of documents at p.1

22 Exhibit R1, Statement of Tim Phillips at [34]

23 Exhibit R1, Statement of Tim Phillips at [39] – [41], Exhibit TP1 at p.37 - 42

24 Exhibit R1, Statement of Tim Phillips at [42], Exhibit TP1 at p.43

25 Exhibit A1, Applicant’s bundle of documents at p.4, Q1d

26 Exhibit A1, Applicant’s bundle of documents at p.1

27 PN101

28 PN148 – PN149

29 PN134 – PN135

30 PN101

31 PN150 – PN152

32 PN153

33 PN213

34 PN155 - PN156

35 Exhibit A1, Applicant’s bundle of documents at p.4, Q1d

36 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

37 (2011) 203 IR 1 at [13], [15]

38 PN231

39 PN289, PN291 - 292

40 PN172 – PN173

41 PN262 – PN266

42 PN232

43 PN97, PN99, PN280

44 Exhibit A1, Applicant’s bundle of documents at p.1-2

45 PN95, PN99

46 PN268 – PN270

47 Exhibit A2, Statement of Dylan Jusuf

48 PN280 – PN285

49 PN295 – PN296

50 PN289, PN291 - 292

51 PN293

52 JulianNicolas Jr v Nortask Pty Ltd[2014] FWC 5324

53 [2014] FWC 5324 at [47]

54 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

55 Exhibit A1, Applicant’s bundle of documents at p.4, Q1e

56 Respondent’s Submissions, filed 9 August 2018 at [41.7]

57 Respondent’s Submissions, filed 9 August 2018 at [35] and Exhibit R1, Statement of Tim Phillips, Exhibit TP1 at p.34

58 Exhibit A1, Applicant’s bundle of documents at p.4, Q1f and p.2

59 Respondent’s Submissions, filed 9 August 2018 at [40]

60 Respondent’s Submissions, filed 9 August 2018 at [50] – [51]

61 PN387, PN390

62 PN391 - PN393, PN398 - PN400, PN431

63 PN398, PN400

64 PN432 – PN433

65 Exhibit R1, Statement of Tim Phillips at [13]

66 Exhibit A1, Applicant’s bundle of documents at p.4, Q1g

67 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]

68 Markos Wilson v Woolworths[2010] FWA 2480 [24] – [14]