Collins v Bunnings Group Limited
[2016] FWC 7080
•3 OCTOBER 2016
| [2016] FWC 7080 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rita Collins
v
Bunnings Group Limited T/A Bunnings Warehouse
(U2016/8139)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 3 OCTOBER 2016 |
Application for relief from unfair dismissal – extension of time not granted.
[1] Ms Rita Collins alleged that the termination of her employment by Bunnings Group Ltd T/A Bunnings Warehouse (Bunnings) was unfair.
[2] There was no dispute that the date of termination was 1 June 2016 or that Ms Collins was notified on that day. 1 Ms Collins completed her Form F2-Unfair Dismissal Application (Application) and filed it with the Fair Work Commission (Commission) on 1 July 2016.
[3] Ms Collins’ application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).
Preliminary procedural matter
[4] In the Application, Ms Collins named ‘Bunnings Building Supplies Pty Ltd T/A Bunning Warehouse’ as the Respondent. In the Form F53 Notice of representative commencing to act filed for Bunnings, the legal name of the business was recorded as Bunnings Group Ltd and the trading name of the business was recorded as Bunnings Warehouse. At the hearing, Mr Barkatsas, who appeared for Bunnings, confirmed that the Respondent is in fact ‘Bunnings Group Ltd T/A Bunnings Warehouse.’ I have therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 2
[5] I will now consider the extension of time matter.
Extension of Time
[6] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 3where the Full Bench said:
“[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." [Endnotes not reproduced]
[8] At the hearing, Ms Collins gave evidence and addressed the material she had filed. Mr Barkatsas made submissions for Bunnings.
Section 394(3)(a) the reason for the delay;
[9] There must be an acceptable reason for the delay in making the unfair dismissal application. 4 Ms Collins must provide a credible reason for the whole of the period that the application was delayed.5 Ms Collins’ application was filed nine days late.
[10] 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. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 6
[11] The Full Bench in Ozsoy v Monstamac Industries Pty Ltd (Ozsoy), 7described the reason for the delay in the following terms:
“The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.” 8
[12] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank, 9 Vice President Watson and Deputy President Smith re-emphasised the point made in Ozsoy:
“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. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.” 10
[13] Finally, the Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic (Diotti) 11:
"…while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."
[14] Ms Collins submitted there were three reasons why her application was made more than 21 days after the dismissal.
[15] Firstly, Ms Collins said there was possible representational error. 12 Ms Collins said that while officials from the Shop, Distributive & Allied Employees' Association (SDA) had been very supportive during the formal meetings prior to her termination and in ensuring she received her entitlements, they had said to her they had been advised by their lawyers that she could not win her case and therefore they would not represent her. Ms Collins said the SDA did not recommend she continue on her own and she does not recall being advised of a 21 day time limit by any SDA official.
[16] Secondly, Ms Collins said she suffers from numerous medical conditions which affect her ability to be timely in various aspects of her life. 13 She said the stress associated with being on time and organised has been exacerbated by various life events and ongoing concerns, including caring for her mother who is unwell. Ms Collins said she often feels overwhelmed and fatigued and has been attending various doctors and psychologists. She tendered a report dated 29 July 2016 from her General Practitioner, Dr Ross Baverstock, which stated:
“I am a GP at Apollo Health, Armadale. I have been seeing Rita since July 2015 and she has been seeing other GPs here since June 2015.
I am currently treating her for severe anxiety, depression and OCD symptoms, all of which are chronic (long lasting, for many years) and cause secondary lethargy and malaise. She is seeing a psychologist and she takes medication for this.
Due to the chronic nature of her condition, she struggles to function, particularly in regards to time management and her ability to meet deadlines. Her OCD behaviours mean that she finds it very hard to leave her house in time for appointments, for work and for other commitments. I have seen this first hand, as she is almost always late or very late for appointments.
The consequence of this is that she is unintentionally late for appointments, meetings, work or other deadlines. By this I mean that there is no deliberate or malicious intent; it is a consequence of her mental health. Rita tells me that she struggled to start her work shifts on time and this has lead [sic] to her dismissal.
Rita currently has a stressful family situation, which adds to her depression and anxiety, and further exacerbates her ability to function to a normal level. Her rituals are worse when stressed, leading to further delays in her time keeping.
All of the above has meant that she is late in filing her application to the Fair Work Commission. It is my belief as her GP that her underlying mental health issues directly (but unintentionally) contributed to this delay and I ask that you take this into account when deciding whether to extend her application deadline.” 14
[17] Ms Collins expanded on this, stating:
“Basically the condition makes it very difficult for me to get things done, particularly if I have to leave the house. Not impossible, but difficult, and so any kind of deadlines I find difficult to manage, whether it was when I was studying or when I was doing something at work or whatever it happens to be.” 15
[18] Ms Collins also tendered an earlier report of Dr Baverstock, dated 13 April 2016, 16 which had been provided at Bunnings’ request in order for it to understand Ms Collins’ short and long term restrictions and implement a suitable action plan in response. Dr Baverstock expressed the opinion that Ms Collins’ obsessive compulsive disorder (OCD) means that she takes a long time to complete tasks, double checks things, finds it hard to multi-task and has to finish one task before starting another.
[19] Ms Collins said her medical treatment from Dr Baverstock is ongoing and she is on medication and seeing a psychologist. 17
[20] Various exhibits of Ms Collins confirm the persistent nature of her OCD and consistently note the difficulties multi-tasking posed for her, including the longer time it would take her to complete tasks compared with other people. 18 Additionally, a medical certificate from Dr Conor Bradley, dated 7 July 2015, advised as to anxiety manifesting itself with compulsions and obsessions, which interfered with activities of daily living and resulted in Ms Collins being late for appointments and commitments.19
[21] Thirdly, Ms Collins said she had technical issues, with difficulty getting through to various organisations to assist her in obtaining and filling in her Application. 20 She said she had to wait for people to return her calls to get advice which took days at times.
[22] Exhibit A2 details a range of Ms Collins’ activities during the period 27 June 2016 - 1 July 2016 (inclusive), including:
- Over 10 attempts to call the Employment Law Centre;
- 4 phone calls to the SDA;
- 2 phone calls to her lawyer friend;
- 2 phone calls to “Industrial Relations”;
- 4 phones call to Work Claims Australia;
- 3 phone calls to Bunnings support persons;
- Phone calls regarding her health insurance and Wesfarmers shares;
- Multiple phone calls to treating medical practitioners;
- 3 phone calls to the Commission to ascertain the hours during which it was open.
[23] Ms Collins also said she had difficulty lodging her application online because she is “not very good with computers” 21 and she asked a member of the Commission’s staff from either the Perth or Melbourne Registry to send her a copy of the Application form. She said she received the form via Express post on 28 June 2016 and having completed it, lodged it in person at the Commission’s Perth Registry on 1 July 2016.
[24] Ms Collins said in concluding her evidence in relation to s.394(3)(a) of the Act:
“…I have mentioned the general fatigue of the whole situation plus, as I said, because I'd been terminated I then had to transfer shares and do a whole lot of other things to do with that. Plus I also was no longer. I no longer had an income so I had to then make sure that I went to different appointments. And the reason I'm mentioning that is to say that just is again adding to the number of things, that my evidence says, it's difficult for me to multi-task. I was having to multi-task multiple aspects of my life at the same time as the lodgement. That doesn't make it impossible for me to lodge it, but it made it more difficult because I was trying to juggle multiple activities, multiple distractions, multiple priorities just so that I could pay my rent and things, if you understand what I mean, so it wasn't just the lodgement of this. This was important and I was focusing on it, but the other things were exacerbating my stress and I had to attend to them as well, because I was also in the process of applying for a disability support pension so I had to go in and have an interview on the 10th which was in that same period of time, I think, 10 June was actually before lodgement, but those are the things that were happening prior to lodgement but all of them, you know, as I was saying, just exacerbated any stress levels and any fatigue that I was suffering, if that makes sense.” 22
[25] Bunnings submitted that there was no representative error on the basis that there was no evidence the SDA failed to act on the instructions of Ms Collins or gave her incorrect advice. Fundamentally, Bunnings submitted there could be no finding of representative error because the SDA expressly refused to act on her behalf.
[26] Bunnings submitted Ms Collins’ alleged medical reasons for the delay are not only far from unusual, special, or uncommon as to amount to “exceptional circumstances” within the meaning of s.394(3) of the Act, but were unsustainable on her own evidence. It made the following additional submissions in relation to the issue of Ms Collins’ medical condition:
● It did not have the opportunity to cross examine Doctor Baverstock on the contents of his report;
● There was no evidence the health issues of Ms Collins acted as an impediment to lodgement of the claim for unfair dismissal in any way 23 or established incapacity to take any action in respect of her dismissal in the nine day period of delay before the lodgement of her Application;
● Ms Collins’ evidence did not paint a picture of the “debilitating nature of the health problems” 24 during the period following dismissal and, crucially, during the period of the delay. She was variously able to make phone calls to the SDA, the Department of Human Services, the Respondent, Wesfarmers, a naturopath, a doctor, a psychologist, the Employment Law Centre, various friends regarding her circumstances, and her health insurance provider. She was also able to attend an appointment at Centrelink, a psychologists appointment, arrange for servicing her car (cited in her Form F2 as a reason for the delay) and deal with other unspecified “life issues”.
In this respect, Bunnings relied on the decision in Ambrose v Target Australia Pty Ltd T/A Target Australia, 25 in which it was determined that the Applicant’s medical condition had not rendered her incapable of “making rational decisions in the 21 day period following her termination” in circumstances where the evidence indicated she had, during that period, pursued a workers’ compensation claim, made contact with the Commission and a lawyer and prepared a very detailed application with supporting materials;26
● Relying on the statement of Commissioner Cambridge in Wemyss v Mission Australia Employment Services, 27 “…if FWA was to except [sic] that the applicant’s health problems provided some acceptable reason for the delay, there would need to have been evidence of the debilitating nature of the health problems and their alteration with those problems on or around 27 November 2009 which enabled the applicant to make the inquiries that led quickly to the lodgement of the claim”,28 Bunnings submitted the evidence did not demonstrate an alteration in the medical condition of Ms Collins which had allegedly restricted her from lodging her application within the statutory timeframe and that there was no evidence as to how she was able to prepare the Form F2 and lodge it in-person at the Commission on 1 July 2016, but could not do so previously.
[27] Bunnings submitted that while the evidence demonstrated a potential ignorance of the timeframe, process and rights of lodgement, and/or the applicable law, Nulty stood for the proposition that mere ignorance of a statutory time limit is not an exceptional circumstance.
[28] As to the technical issues, Bunnings submitted that taking the evidence of Ms Collins at its highest, there were no particulars as to what attempts were made, what issues she faced or what alternatives were undertaken in terms of actually trying to get the application lodged and because they were not exceptional, they did not ground an acceptable reason for the delay. 29
[29] In relation to the general health and stress issues raised by Ms Collins, Bunnings submitted that stress and shock resulting from a dismissal are not uncommon experiences and relied on a number of previous decisions of the Commission in this regard. 30
Consideration
[30] I am not persuaded there was representative error that could be regarded as an acceptable reason for the nine day delay in lodging the application. The SDA did not agree to act on behalf of Ms Collins in prosecuting an unfair dismissal claim and the evidence does not establish that it failed to act on her instructions. While I am satisfied, based on the evidence of Ms Collins, the SDA told her it had formed the view that her claim was unlikely to succeed, the evidence does not establish the SDA gave Ms Collins incorrect advice or failed to act in accordance with her instructions.
[31] The evidence establishes that Ms Collins first learned of the 21 day period on 22 June 2016. She discovered this through a friend who had contacted her in response to a facebook posting Ms Collins had made stating she had finished her job. 31 Ms Collins said this friend told her she should put a claim in very quickly because of the time limit.32 This prompted Ms Collins to attempt to contact the Commission on 22 June 2016 and make contact on 23 June 2016. She also attempted to contact the Employment Law Centre to make further enquiries.33 Ms Collins said that during her Commission discussion on 23 June 2016, she realised that because her application would be made out of time, she would have to seek an extension of time. She said she was able to discuss what she needed to put in an application and understood that she would need to move quickly. Following further advice from another friend, Ms Collins said she also spoke with a lawyer “at the Industrial Relations” on 28 June 2016 and was told to get her application in “as quick as you can because they do count the days.”34
[32] The evidence discloses that Ms Collins did not become aware of the time limit until the 21st day after her termination. While this was a significant factor in the late lodgement, her ignorance of the time limit cannot be regarded as an acceptable reason for the delay or as an exceptional circumstance. 35
[33] The consequence of this lack of awareness of the time limit was that Ms Collins did not pursue an application until the 21st day after her termination and even then, her initial attempt to contact the Commission on that day was not successful. She only made contact with the Commission after the 21 day time limit had passed.
[34] I am not persuaded that any of the technical issues raised by Ms Collins are an acceptable reason for the delay. The alleged difficulty Ms Collins experienced in trying to lodge an application online and download relevant forms from the Commission website was not of a nature that constitutes exceptional circumstances or represents an acceptable reason for the delay. Further, I do not regard the failure of Ms Collins to make contact with the Commission on 22 June 2016 or the other difficulties she had contacting various agencies and potential advisers after this as technical issues. What is significant is that from at least 23 June 2016, Ms Collins was in receipt of advice regarding what she needed to include in an application and knew that she would have to apply for an extension and needed to move quickly.
[35] I have taken particular note that Ms Collins also attributed the delay to various medical conditions, particularly her OCD, and I have given this careful consideration. Although he was not present at the hearing or available for cross examination, I have no reason to doubt the description of her condition by Dr Baverstock. I accept that Ms Collins’ OCD impacts her ability to multi-task and complete tasks in a timely manner and I accept that the likely impact of Ms Collins’ condition was that it took her longer to complete and lodge the Application than would have been the case were she not afflicted by it. However, I do not accept the conclusion in Dr Baverstock’s report that the combination of her severe anxiety, depression and OCD symptoms and stressful family situation resulted in her being late in filing her application.
[36] The medical evidence does not establish that Ms Collins was incapacitated such that she was unable to lodge or pursue the Application at all. Her own evidence was that her condition makes it difficult, but not impossible, to meet deadlines. The evidence also established that Ms Collins was able to attend to a range of tasks during the first 21 days following the termination of her employment and again, during the period 27 June - 1 July 2016. The evidence clearly established that, while suffering from her medical condition throughout, Ms Collins simply did not become aware of the time limit until the 21st day after her termination.
[37] Ultimately, I consider the reason for the delay beyond the 21 day limit was the fact that Ms Collins was unaware of it until the 21st day after her termination. This is a different scenario to the example cited by the Full Bench in Diotti and I cannot and do not regard it as an exceptional circumstance.
[38] For the reasons outlined above, I am not satisfied that Ms Collins has provided a reasonable explanation for the delay in lodging her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect;
[39] Ms Collins was notified of her dismissal in a meeting on 1 June 2016 and was aware of its immediate effect. As Ms Collins was aware of the dismissal on the day it took effect, she had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c) any action taken by the person to dispute the dismissal;
[40] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 36
[41] Ms Collins said she did not take any action to dispute the dismissal at the meeting on 1 June 2016 based on what the SDA had advised her regarding her prospects of challenging it, other than asking whether there was anything she could do to change the outcome. 37 She also did not challenge Bunnings regarding her termination during the subsequent process of attending to administrative requirements associated with it.38
[42] Bunnings submitted that Ms Collins made no attempt to dispute the dismissal with it and nor was it aware she had disputed the termination in any other forum. It also referred to the discussion record completed at the 1 June 2016 termination meeting. 39 In completing her response in the discussion record, which was witnessed by her support person, Ms Collins stated:
“I acknowledge this discussion record as accurate, to the best of my knowledge. I understand that my behaviour/lateness has impacted on other team members even though this was not obvious to me always from discussions with Team members that I had personally. The length of time that this has occurred, I do understand has a compounding effect on myself & others. This was not my intention however, and I have attempted to reconcile any issues resulting from the above with various people.
I acknowledge that Bunnings and various co-ordinators & complex & Ops managers has supported me as much as possible within the constraints of the business. They have changed shifts, shortened hours, and been extra patient, more than perhaps would normally have been accommodate [sic]. Most recently Jo Morris, Leanne martin, Juilian Page, Steve Warnes, just to name a few & numerous team. I am very grateful for my time here & will always be glad for the opportunities, inc shares that it [sic] have been given to me. It is with great sadness that I finish my time here.”
[43] Apart from lodging her unfair dismissal application and asking whether there was anything she could do to change the outcome at the termination meeting on 1 June 2016, there was no other evidence of Ms Collins having contested the dismissal with Bunnings either at the termination meeting on 1 June 2016 or during the period following it. I have also noted the nature of Ms Collins’ comments in the discussion record. I do not consider Ms Collins merely asking whether there was anything she could do to change the outcome at the termination meeting, without something more, weighs in favour of a finding there are exceptional circumstances.
Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay);
[44] Prejudice to the employer will weigh against granting an extension of time. 40 However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.41
[45] Citing Brisbane South Regional Health Authority v Taylor, 42 Bunnings said that a long delay gives rise to a general presumption of prejudice. While it submitted a delay of nine days may give rise to this presumption, Bunnings did not raise any specific prejudice.
[46] Ms Collins submitted that Bunnings would suffer no major prejudice as her application was only nine days late. 43
[47] I consider this criterion to be neutral.
Section 394(3)(e) the merits of the application;
[48] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 44, it said:
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."
[49] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 45 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.
[50] Ms Collins does not dispute there were issues with her punctuality, but submitted her dismissal was harsh, unjust and unreasonable. In support of this proposition, she submitted the termination was disproportionate as she was a conscientious and accomplished team member, due weight and consideration was not given by Bunnings to the medical evidence she had provided regarding the causation of her lateness and she has suffered significant economic and personal consequences as a result. 46 Ms Collins conceded that during her time at Bunnings, she had a continuing problem with being late to work based on medical grounds, which was exacerbated by tragedies concerning family and friends.47
[51] Bunnings submitted Ms Collins was dismissed after a “long history” of punctuality concerns which had a compounding effect on fellow team members in her department and the store. 48 It alleges that Ms Collins had continued to present late for work in the period following a discussion regarding her lateness on 5 April 2016 and her eventual termination on 1 June 2016, despite follow-up formal discussions and the outlining of expectations and requirements in the intervening period.49 In all, Bunnings alleges the punctuality issues were discussed twelve times in three years, and following the breach of the most recent non-negotiable outcomes, Ms Collins was dismissed.50
[52] I note that the position of Ms Collins is that the dismissal was a disproportionate response that failed to have regard to her medical conditions and has had significant adverse consequences, while Bunnings maintains that the punctuality issues were longstanding, persistent and not addressed by Ms Collins, despite ongoing discussions and her being given a number of opportunities to improve. I am not able to make a final assessment of the merits as the evidence of the parties has not been tested. I consider this criterion to be neutral.
Section 394(3)(f) fairness as between the person and other persons in a similar position.
[53] In Wilson v Woolworths, 51 it was said of this criterion:
“It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically.” 52
[54] The question of fairness as between the Applicant and other persons in a similar position was also considered in Morphett v Pearcedale Egg Farm ,53 as follows:
“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
[55] Bunnings referred to the recent statement in Whittle v Redi Milk Australia Pty Ltd, 54 that this criterion “has a very limited scope of operation”, in that it is concerned with “other applicants employed by the same employer and affected by the same issue who filed applications in time.”55
[56] Bunnings submitted there are no other persons in a position similar to that of Ms Collins and that this factor is not supportive of finding exceptional circumstances exist. 56
[57] Ms Collins said that anyone in her position would require and appreciate extra compassion and an extension of time. 57
[58] I consider this criterion has a narrow application and in the absence of submissions that there were other persons in a similar position to Ms Collins, in terms of matters currently before the Commission or matters which have been previously decided by the Commission, I consider this criterion to be neutral.
Conclusion
[59] Having taken into account the matters referred to in paragraphs [9]-[58] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Collins’ application to be made. Ms Collins’ circumstances were not out of the ordinary course, unusual, special or uncommon. She has not provided a reasonable explanation for the whole of the delay and none of the criteria weigh in favour of a finding of exceptional circumstances, being either neutral or weighing against.
[60] Ms Collins’ application for an extension of time is refused and therefore her unfair dismissal application is dismissed. An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms R Collins on her own behalf.
Mr N Barkatsas (Victorian Chamber of Commerce & Industry) for the Respondent.
Hearing details:
2016.
Melbourne and Perth (video link):
August 11.
1 Exhibit R5 at [1] and Form F2-Unfair Dismissal Application.
2 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].
3 (2011) 203 IR 1.
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
5 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.
6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
7 [2014] FWCFB 2149.
8 Ibid at [31].
9 [2015] FWCFB 287.
10 Ibid at [12].
11 [2016] FWCFB 349 at [31].
12 Answer to Question 4 in Exhibit A2 .
13 Answer to Question 4 in Exhibit A2.
14 Exhibit A3.
15 Transcript PN 185.
16 Exhibit A4.
17 Transcript PN 226-227.
18 Exhibits A3,A4, A5, A6 and A8.
19 Exhibit A7.
20 Answer to Question 4 in Exhibit A2.
21 Transcript PN 188.
22 Transcript PN 199.
23 As in Wemyss v Mission Australia Employment Services[2010] FWA 1798 at [20].
24 Ibid at [21].
25 [2015] FWC 314.
26 Ibid at [52].
27 Wemyss v Mission Australia Employment Services[2010] FWA 1798.
28 Ibid at [21].
29 Transcript PN 412-414.
30 Giles v Mandurah Aquatic and Recreation Centre[2015] FWC 1881, Rose v BMD Constructions Pty Ltd[2011] FWA 673, Casey v Guardian Community Early Learning Centres[2014] FWC 4002 and Wilson v Amcal Max Shearwater[2016] FWC 5262.
31 Transcript PN 161, 327, 349-352.
32 Transcript PN 162.
33 Transcript PN 188-191 and Exhibit A2.
34 Transcript PN 197.
35 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
36 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
37 Transcript PN 177, PN 207 and PN 209.
38 Transcript PN 209.
39 Exhibit R3 at page 2.
40 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
41 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
42 (1996) 186 CLR 541, 556.
43 Answer to Question 6 in Exhibit A2..
44 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
45 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
46 Answer to Question 7 in Exhibit A2.
47 Exhibit A1.
48 Exhibit R5 at [43].
49 Ibid at [44] – [50].
50 Ibid at [51].
51 Wilson v Woolworths[2010] FWA 2480.
52 Ibid at [29].
53 Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].
54 [2016] FWC 3773.
55 Ibid at [38] and [39].
56 Exhibit R5 at [54].
57 Answer to Question 8 in Exhibit A2.
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