Brian McBurnie v Austren Group Pty Ltd t/a Mt Windows and Doors
[2020] FWC 6304
•2 DECEMBER 2020
| [2020] FWC 6304 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Brian McBurnie
v
Austren Group Pty Ltd t/a MT Windows and Doors; Wenzhen Wang; Mustapha Chalaei
(C2020/3491)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 2 DECEMBER 2020 |
Application to deal with contraventions involving dismissal.
[1] This decision concerns an application by Mr Brian McBurnie for the Commission to deal with a general protections dispute involving dismissal from his employment with Austren Group Pty Ltd t/a MT Windows and Doors (company), made under s 365 of the Fair Work Act 2009 (Cth) (Act).
[2] I have determined that Mr McBurnie did not file within the statutory timeframe and to allow a further period within which to lodge his application. These are the reasons for that decision.
Context
[3] On 13 August 2019, Mr McBurnie was offered employment as Sales Manager/General Manager of the company and commenced that role on or around 16 September 2019. 1
[4] On 6 April 2020, Mr McBurnie received written notification from Mr Wang (Managing Director of the company) that his employment would end by reason of redundancy. That email stated that Mr McBurnie would be “laid off effective from 22/04/2020”. 2 Mr McBurnie responded that same day in which he confirmed he understood he was being terminated and expected fair compensation.3
[5] On 15 April 2020, Mr McBurnie was emailed a termination letter. The subject line of the email was “Termination Letter”. The subject line of the attached letter was “Termination of your employment by reason of redundancy”. It stated that Mr McBurnie’s role was redundant meaning his employment “will terminate” and, relevantly:
“Your employment will end immediately. Based on your contract of employment, your notice period is two weeks. Instead of receiving that notice, you will be paid the sum of $3846.16, plus the redundancy entitlement set out below.”. 4
[6] Mr McBurnie responded by email that same day, on 15 April 2020. In his response, Mr McBurnie stated that he did not accept the company’s offer as a final payment and, notwithstanding that he sought an amicable separation, that he intended to lodge a claim for “wrong full dismissal” (sic.) and interest on compensation. 5
[7] On 16 April 2020, Mr Wang replied:
“I believed I have offered best we can offer to you.
If you think it is not fair, you have right to lodge the case to fair work.
I will pay you all entitlements on 22nd and I will come to pick up the car, keys, fuel card and apple wireless earphone from your home at the same day.” 6
[8] Mr McBurnie responded that same day, on 16 April 2020, in which he stated that he: would lodge a claim for unfair dismissal and unpaid compensation; did not wish for Mr Wang to come to his house; would return the car on Tuesday afternoon (21 April 2020) at 4.30pm; and expected payment in his account before he saw Mr Wang on Tuesday plus a written summary of the payout “submitted forthwith”. 7
[9] On 20 April 2020, Mr McBurnie first contacted Bateman Battersby Lawyers and arranged an initial consultation for 22 April 2020. A file note of a telephone discussion between Mr McBurnie and a Mr Ken Gray (Lawyer, of Bateman Battersby Lawyers) was produced to the Commission and relevantly noted redundancy and “employment ends Wednesday”. 8
[10] At around 11.00am on Tuesday 21 April 2020, Mr McBurnie returned his company car and possessions which he told the Commission was a time when his daughter was able to assist. 9 Mr McBurnie was handed a payslip which reflected a final payment date of 21 April 2020 and immediately requested an amendment to the description of one component, which was handwritten by Mr Tank.10 Subsequently, on 21 and 22 April 2020, Mr McBurnie emailed Mr Wang regarding entitlements claimed to be owed and outstanding.
[11] Mr McBurnie included in his evidence a statement that, because he held “the subjective belief that (his) termination would be ended on 22 April 2020”, he had answered telephone calls and looked after some client inquiries on behalf of the company in the period after 15 and until 22 April 2020. 11 Mr Wang gave evidence that he had not assigned any work to Mr McBurnie since 15 April 2020, which Mr McBurnie accepted.12
[12] On 22 April 2020, Mr McBurnie attended a meeting with Mr Gray. Mr McBurnie gave evidence that he showed Mr Gray a copy of his 15 April 2020 termination letter. A copy of the file note of this meeting was produced to the Commission and includes the following handwritten note:
“[…]
Query when employment ended as letter of 15th says effective immediately. He says not the case, he was told employment ended on 22 April 2020. If that is case that’s deadline, application needs to be lodged by 12 May 2020”. 13
[13] Mr McBurnie’s evidence is that he copied his relevant documents and delivered them by hand to Mr Gray on the morning of 23 April 2020. He was informed that Mr Gray could not start work on his case until 24 April 2020. On 28 April 2020, Mr McBurnie telephoned Mr Gray’s office seeking an update and was told that Mr Gray would get back to him. At 4:52pm on 29 April 2020, Mr McBurnie received an email on behalf of Mr Gray which attached a proposed letter to the company and sought Mr McBurnie’s instructions. The draft letter outlined claims for general protections, discrimination and unfair dismissal, included an offer to resolve the dispute and required a response by 5pm on 6 May 2020. The cover email to Mr McBurnie acknowledged his intention to make an unfair dismissal claim, referenced the very short timeframes to commence such claim and proposed to include a time based condition of any resolution to ensure sufficient time to make such application if a deal could not be reached. Mr McBurnie’s instructions were sought as soon as possible so that Mr Gray could issue the letter. 14
[14] At 7:51am on 30 April 2020, Mr McBurnie responded to Mr Gray in which he said that he had read and agreed with the content of the letter and instructed Mr Gray to please proceed as soon as possible with sending the letter. 15 It is unclear on the materials before the Commission whether the draft letter was ever sent to the company.
[15] On 11 May 2020, Mr McBurnie followed up with Mr Gray by text message to inquire about his case. At approximately 5:00pm that day, Mr Gray telephoned Mr McBurnie who confirmed he wished to proceed with the unfair dismissal claim. At 5:59pm that day, Mr Gray emailed Mr McBurnie as follows:
“I refer to our discussions today regarding your instructions to proceed with an unfair dismissal application against your former employer. An issue that arose in that conversation in regards to what date did your employment end. This is important as there is a time limit of 21 days from the date the termination takes effect to lodge your claim. In regards to this I note the following:
When we first spoke by phone on 20 April 2020 you said you were in a notice period which ended on Wednesday being 22nd April 2020.
When we spoke this afternoon, you indicated that you were told in the termination letter when your last day was. When I pointed out it was not in the letter dated 15 April 2020, you said it was in the paperwork you gave me. I then noted the e-mail of 6 April 2020 gave your last day as 22 April 2020 but that was likely superseded by the 15 April 2020 letter. In the absence of any other agreement post the 15 April 2020 letter and where you said today you did not do any work post 15 April 2020 it is likely 15 April 2020 will be considered the effective date of your termination unless there is some other conversation or document you can point to showing 22 April 2020 as your last day.
This issue is very important as if your employment ended on 22 April 2020 the last day to lodge an application is tomorrow. If it was 15 April 2020 the deadline was 6 May 2020. The act does allow you to seek leave to apply out of time if you can show exceptional circumstances with the criteria being […]. I don’t know that you would satisfy the tribunal that there were exceptional circumstances and leave should be granted. As such it is important we determine what your last day of work was.
[…]” 16
[16] At 8:25am on 12 May 2020, Mr McBurnie emailed Mr Gray in which he set out the sequence of events as outlined above and further said as follows:
“Ken as you can see from the trail considerable time has been lost which is now the problem, When I initially contacted Fair work Australia I was told that proceedings cannot be instigated until after I have officially finished which I believed was the 22nd of April, this date was listed in the paper work supplied to you in the email dated 16/4, I am now being told this is not the case as I was not working from home as previously directed and changed by the employer to be working my notice after being advised I was being terminated, again as listed in the emails supplied.
I am now in a position of having to be put under undue stress in attempting to get information to satisfy the requirements, this could have been attempted earlier had I been advised to do so before now and gain the time to lodge the application…”. 17
[17] Mr McBurnie concluded his email to Mr Gray by confirming he would not be engaging his firm to lodge an unfair dismissal application on his behalf.
[18] Also on 12 May 2020, Mr McBurnie contacted Connect Legal who lodged this general protections claim that same day.
Was the application made out of time?
[19] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2).
[20] In this case, there is a dispute about when the dismissal took effect.
[21] Mr McBurnie asked the Commission to accept that his termination was effective 22 April 2020 and accordingly this application was filed within the statutory timeframe. Mr McBurnie’s representative pointed to the following in support:
• the email of 6 April 2020, which provided for a termination date of 22 April 2020 and he claimed was not expressly revoked, withdrawn or clarified (noting Mr McBurnie does not accept that the 15 April 2020 termination letter was of such effect);
• the email of 16 April 2020, in which Mr Wang confirmed he would pay all entitlements on 22 April 2020; and
• that Mr McBurnie’s final payment was for the 17-21 April 2020 pay period, as reflected on the payslip and during which time he claimed to have performed work for the company (notwithstanding that it was accepted that Mr Wang did not assign such work).
[22] Mr McBurnie’s representative argued that, by the terms of s 117(2)(b) of the National Employment Standards in the Act and/or the contract, the effective date of dismissal must have been the date on which the notice was paid. Specifically:
• s 117(2)(b) of the NES, which relevantly provides:
“(2) The employer must not terminate the employee’s employment unless:
[…]
(b) the employer has paid to the employee … payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee .. had the employment continued until the end of the minimum period of notice”,
prevents termination before the employer has paid to the employee at least the minimum notice (in this case, one weeks’ notice) and therefore must mean that the termination could not have been effective prior to the notice being paid; and/or
• that clause 10.1 of the contractual terms provides that termination can only be effected by the company giving the required period of notice or “by paying”an amount equal to remuneration for the period of the notice (or part thereof) and, when read with clause 10.4 which enables the company to direct the employee either to not attend for work or to perform duties during the notice period, the contract must mean that the period of employment extends to the end of the time period when the notice is paid.
[23] The company contended that the termination was effective immediately on 15 April 2020. It argued that the termination letter of 15 April 2020 is a written communication to Mr McBurnie which superseded the 6 April 2020 email and plainly provides that the termination is of immediate effect. The company said that Mr McBurnie did not attend the workplace after 15 April 2020 (other than for the purpose of returning his company possessions, at his convenience, on 21 April 2020) and maintained that no work was directed to be performed in the period after the termination letter was given to Mr McBurnie on 15 April 2020. The company contended that payment in lieu of notice resulting in a termination of immediate effect is consistent with the company’s legal rights and obligations.
[24] A dismissal on notice takes effect upon the date of the expiration of the specified period of notice where this is clearly identifiable, or it may take effect upon the payment in lieu of notice. 18 In the case of a dismissal with a payment in lieu of notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee. 19
[25] On the evidence before the Commission, I consider that the 15 April 2020 termination letter constituted a clear communication that the employment was to end effective immediately meaning that same day. The cover email plainly referenced that a termination letter was attached. That there was an earlier indication, in the 6 April 2020 email, of a final employment date of 22 April 2020 does not displace the clear and unambiguous language of the 15 April 2020 termination letter which unmistakably confirms Mr McBurnie’s termination was effective immediately. By that communication, Mr McBurnie clearly knew that he had been dismissed as he then proceeded to seek advice about his dismissal with regard to that letter (a copy having been provided to his then legal representative for the purposes of seeking advice about his case). Mr McBurnie sought such advice within days of receiving the letter and before the final payment was made.
[26] I consider that the annexure to the letter of offer dated 13 August 2019, which the parties accepted as constituting binding contractual terms, permitted termination to be notified with immediate effect. The relevant parts of clause 10 provide as follows:
“10. Termination
10.1 Subject to clause 2, your employment may be terminated at any time:
(a) by you giving the Company the Required Period of Notice in clause 10.2 in writing; or
(b) by the Company giving you the Required Period of Notice in clause 10.2 or by paying you an amount equal to your Remuneration in lieu of notice for that period or in part by giving you notice and in part by making a payment to you in lieu of notice.
[…]
10.4 During the period of notice provided for in clause 10.1, the Company may, at its discretion, require you to either:
(a) not attend for work; or
(b) perform duties which are different to those which you were required to perform during the rest of your employment with the Company, provide only that you have the necessary skills and competencies to perform the duties.”
[27] The contract plainly distinguishes between “giving” a notice period and paying an amount in lieu thereof. In my view, the 15 April 2020 termination letter accords with the second alternative in clause 10.1(b) as it is expressed in plain language that notice would be paid out as a lump sum monetary amount “instead of receiving that notice”. I consider the better interpretation of clause 10.4 is that it applies to a circumstance in which notice is “given” (by either the employee or the company) and the employment relationship continues during and until the end of the notice period. In those instances where the relationship continues, it is logical that the parties would provide for whether an employee may be directed to perform duties or not attend for work. This interpretation rests comfortably with the ordinary meaning of a termination with payment in lieu of notice, whereby the employment relationship does not extend until the end of what would otherwise have been the notice period but rather ends immediately.
[28] Whether final payment was made on 21 or 22 April 2020 is unclear on the evidence. Whilst payment in lieu was not made immediately on 15 April 2020, the contract does not specify when the payment must be made in order for termination by notice paid in lieu to be effective. It is not uncommon for final payment to be made in the next payroll cycle as would appear to have occurred here. Further, the exchange between Mr Wang and Mr McBurnie on 15 and 16 April 2020 reflects that the final payment amount was contingent on a calculation of the potential bonus amount (about which there was discussion and subsequently, a dispute) and the date of payment was effectively agreed as 22 April 2020. In all of the circumstances of this case, I do not consider the date of final payment to infect what was otherwise a plain and unambiguous termination of immediate effect on 15 April 2020.
[29] Further, there is no evidence that the company required work to be performed by Mr McBurnie from 15 April 2020 and no probative evidence of work actually being performed in this period. I consider the timing of the return of company equipment reflects no more than an agreement reached following conclusion of the employment as is evident by the correspondence exchanged after the 15 April 2020 termination letter.
[30] Whether there was compliance with s 117(2)(b) of the Act (extracted above, and about which I make no finding), this is not a basis to conclude that the effective dismissal date was a date other than 15 April 2020 as plainly expressed in the termination letter. Nor did I understand this argument to be seriously pressed.
[31] The general protections application was lodged on 12 May 2020. The period of 21 days ended at midnight on 6 May 2020. The application was therefore filed six days outside the 21 day period. Having so found, the Applicant asked (in the alternative to his primary argument) that the Commission grant a further period for the application to be made under s 366(2). The company opposed this request.
Are there exceptional circumstances?
[32] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 20 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.21
[33] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[34] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
[35] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay – s 366(2)(a)
[36] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 22
[37] Mr McBurnie’s alternative argument is that the delay in filing his general protections application was due to representative error on the part of his former legal representative.
[38] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 23 In Clark v Ringwood Private Hospital,24 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
• 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;
• 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;
• 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; and
• Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. 25
[39] It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 26 However, as the Full Bench explained in Long v Keolis Downer,27 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.28
[40] The sequence of events relevant to Mr McBurnie’s reason for the delay is set out above. The former legal representative did not give evidence, but certain records were produced by order of the Commission.
[41] On the materials before the Commission, Mr McBurnie took steps to seek appropriate advice about his options to contest his dismissal within five days of his dismissal on 15 April 2020. On 22 and 23 April 2020, and well within the statutory timeframe, Mr McBurnie provided his former legal representative with a copy of the 15 April 2020 termination letter (which I have found to be unambiguous in its meaning) among other information which enabled identification of the potential dispute about the effective date of dismissal. On the records before the Commission, the former legal representative had identified the need to clarify the question of the actual effective date of dismissal as early as the initial meeting on 22 April 2020 and indeed drafted a correspondence to the company which required a response by 5pm on 6 May 2020 which allowed time to file within the statutory timeframe (by midnight on 6 May 2020) if the matter was not resolved. By his later email of 11 May 2020, the former legal representative appears to have concluded that 15 April 2020 was the effective date of Mr McBurnie’s dismissal. The former legal representative had all the relevant information and had identified the relevant issues but did not act with the degree of diligence that would be expected or, at least, in an abundance of caution to protect his client’s position. In any event, for his part, Mr McBurnie was not provided with the necessary guidance until after the time for filing had already expired. Mr McBurnie had made proactive attempts to follow up with his legal representative to progress his case, on 28 April and 11 May 2020. Then, once in receipt of the necessary advice on the evening of 11 May 2020, Mr McBurnie did not then sit on his hands. The very next day, on 12 May 2020, he acted without delay by both seeking further advice, from a different source, and instructing his new legal representative to file this application that same day. The application was filed a relatively short time (six days) after the expiry of the statutory timeframe.
[42] I have considered that there are a range of publicly available sources of information from which Mr McBurnie could have obtained appropriate guidance in order to make this claim within the statutory timeframe. Whilst ignorance is not of itself a reasonable excuse for the delay, in reliance on advice from his then legal representative it is understandable that he did not seek a second opinion or further information prior to receipt of the necessary advice on 12 May 2020.
[43] In the particular circumstances of this case, I consider Mr McBurnie’s reason to be an acceptable or reasonable explanation for the delay. The finding of an acceptable explanation weighs in favour of a conclusion that there are exceptional circumstances.
• taken to dispute the dismissal – s 366(2)(b)
[44] In respect of s 366(2)(b), I am required to take into account any action taken by Mr McBurnie to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.
[45] After he received the termination letter on 15 April 2020, Mr McBurnie immediately took steps to place the company on notice of his intention to dispute the lawfulness of his dismissal and reiterated this intention in correspondence on 21 and 22 April 2020.
[46] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
[47] For completeness, as it is unclear whether Mr McBurnie’s then legal representative sent the draft letter which was intended to put the company on notice of the grounds on which a general protections application would be made, and offered to attempt an amicable resolution by or before 5pm on 6 May 2020, I have had no regard to this as action taken of a kind contemplated by s 366(2)(b). If the letter were established as sent, that would strengthen the weight attributed to this consideration.
• to the employer – s 366(2)(c)
[48] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s 366(2)(d)
[49] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[50] On the materials before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time.
[51] I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position – s 366(2)(e)
[52] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
[53] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.
[54] I therefore consider this to be a neutral consideration.
Conclusion
[55] For the above reasons, Mr McBurnie did not file this application within the statutory timeframe.
[56] Having regard to the matters I am required to take into account under s 366, I am satisfied that the requisite exceptional circumstances exist. The existence of a reasonable and acceptable explanation for the delay in filing the application weighs strongly in favour of a finding of exceptional circumstances and Mr McBurnie’s action to dispute the dismissal also weighs in favour. The other factors are considered neutral. In my view, and on balance taking into account all the matters at s 366, the circumstances of this case are exceptional.
[57] For the above reasons, I have determined to grant an extension of time under s 366(2). Accordingly, the Commission will correspond with the parties regarding progress of the matter.
DEPUTY PRESIDENT
Appearances:
Mr R. Aslanian for the Applicant
Mr A. Britt for the Respondent
Hearing details:
2020.
Melbourne (by video)
24 November
Printed by authority of the Commonwealth Government Printer
<PR724830>
1 Annexure D to the Statement of Wenzhen Wang (Exhibit R1) and Form F8 General Protections Application involving Dismissal filed 12 May 2020.
2 Annexure BM-6 to the Statement of Brian McBurnie (Exhibit A1).
3 Ibid.
4 Annexure BM-7 to Exhibit A1.
5 Annexure BM-8 to Exhibit A1.
6 Annexure BM-9 to Exhibit A1.
7 Annexure BM-10 to Exhibit A1.
8 Part of a bundle of documents produced on 18 November 2020 (Exhibit A3).
9 In evidence at the Hearing on 24 November 2020.
10 Annexure BM-11 to Exhibit A1.
11 Paragraph 69 of Exhibit A1.
12 Paragraph 28 of Exhibit R1; paragraph 6 of the Statement of Brian McBurnie in Reply (Exhibit A2); evidence at the Hearing of 24 November 2020.
13 Part of Exhibit A3.
14 Annexure BM-14 to Exhibit A1.
15 Annexure BM-15 to Exhibit A1.
16 Annexure BM-16 to Exhibit A1.
17 Annexure BM-17 to Exhibit A1.
18 Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [49]; Mr Peter Mihajlovic v Lifeline Macarthur [2013] FWC 9804 at [4]-[7].
19 Ibid.
20 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
21 Ibid.
22 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
23 See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109 as cited in [2020] FWC 3033.
24 (1997) 74 IR 413 at 418-9.
25 Alice Olga Papp v DS Opco Pty Ltd (trading as Harris Scarfe) (formerly PSEA Dept. Stores Pty Ltd)[2020] FWC 3033.
26 Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers [2019] FWCFB 2759 (QGS v Rogers) at [17].
27 [2018] FWCFB 4109 at [60].
28 QGS v Rogers at [16].
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