Cory Bretagne v Nanbai Aus Pty Ltd T/A Imperial Hotel Gold Coast
[2024] FWC 1850
•19 JULY 2024
| [2024] FWC 1850 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cory Bretagne
v
Nanbai Aus Pty Ltd T/A Imperial Hotel Gold Coast
(U2024/4922)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 19 JULY 2024 |
Application for an unfair dismissal remedy
The issue and outcome
On 1 May 2024, Mr Cory Bretagne (the Applicant) made an unfair dismissal application having been dismissed by Nanbai Aus Pty Ltd T/A Imperial Hotel Gold Coast (the Respondent).
Section 396 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.
The Applicant claims his employment with the Respondent was terminated at the Respondent’s initiative on 22 April 2024 and, as such, it follows that his application was made within the statutory period prescribed by s 394(2) of the Act.
The Respondent submits that the Applicant provided it with a medical certificate on 17 April 2018 and after that time the Applicant made no attempt to enquire about the status of his employment. The Respondent further submits that the Applicant was verbally notified that he was being removed from the Respondent’s books on or around 27 April 2018. If the Respondent is correct with its assertion that the Applicant’s dismissal took effect on or around 27 April 2018, it would follow that the Applicant made his unfair dismissal application approximately 2,175 days outside of the statutory period.
The contentious issues in this matter can be summarised as follows:
a) what was the date that the Applicant’s dismissal took effect);
b) did the Applicant make his unfair dismissal application outside of the statutory timeframe provided in s 394(2) of the Act; and
c) if the unfair dismissal application was made outside of the statutory timeframe, are there exceptional circumstance that warrant granting an extension of time in which to make the unfair dismissal application and if so, is it fair and equitable for an extension to be granted?
For the reasons that follow, I have found that the Applicant’s dismissal took effect on 4 July 2018. It follows that the Applicant’s application was made approximately 2107 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and it is therefore unnecessary to consider whether it is fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision.
Background
The Applicant commenced employment with the Respondent as a Chef de Partie on 15 July 2013.
In 2014, the Applicant experienced a work-related injury. A workers’ compensation claim was accepted, and the Applicant returned to work and was provided with work that accommodated the restraints of his medical restrictions. The common law claim for this injury was said to have settled in 2016.
On or around 10 March 2018, the Applicant furnished a medical certificate to the Respondent noting that he was experiencing a medical condition and that he would be unfit for work from 11 – 18 March 2018, inclusive.
The Applicant’s documents included:
a) a Queensland workers’ compensation medical certificate dated 16 March 2018 that certified that the Applicant had no capability for any type of work between 10 March 2018 and 21 March 2018;[2]
b) a Queensland workers’ compensation medical certificate dated 21 March 2018 that certified that the Applicant had fitness for suitable duties between 23 March 2024 and 3 April 2024[3] or 6 April 2024;[4]
c) a Work Capacity Certificate dated 25 June 2018 that certified that the Applicant had no functional capacity for any type of work until (which was left blank).[5]
According to the Respondent, its records indicate that at or around 10 March 2018, a discussion was held with the Applicant regarding his work capacity and the Respondent’s requirements that ‘associates’ have a certain standard of physical fitness for duty, due to limited support resources available. It is the Respondent’s view that the Applicant was understanding of the Respondent’s position and communicated his comfort with not being in the workplace at this time.
On or around 4 April 2018, the Applicant furnished a further medical certificate that provided he was unfit for work due to a medical condition. The Respondent says that this is the last medical certificate it received from the Applicant. The Applicant acknowledges having met with a representative of the Respondent on 4 April 2018 and confirming that he would require approximately three weeks off work. However, email correspondence from the Director of Human Resources of the Respondent dated 4 April 2018 states:
Trish has just spoken with Cory who has advised that his injury is non work related but will require treatment and rest over the next 3 months. He has requested the next 3 months off work.
We are waiting for the correct documentation before making any decision on this and will consult with you once we have evidence. Until we have this please do not roster Cory until further notice.[6]
By email dated 12 April 2018, the Director of Human Resources sent to ‘[email protected]’ the following:
Have you received anything in writing in regards to Cory Bretagne ?? He advised verbally that he would need 3 months off, was advised to provide medical information/documents but have heard nothing from him for over 1 week. I will be ringing today, just wanted to know if he has reported back to WC.[7]
A letter was prepared in or around July 2018, that was to be sent to the Applicant from the Respondent’s Director of Human Resources. The letter stated:
As per your medical certificate received by us on 17 April 2018, noting that you are unfit for duties for the period 4 April 2018 - 4 July 2018, we hereby confirm your request for approved Leave Without Pay.
You are required to advise us in writing 7 days prior to the 4 July 2018 advising of your medical
fitness and ability to return to your usual occupation.[8]
On or around 11 July 2018, the Respondent was notified of a further WorkCover claim. That claim alleged that the Applicant had sustained a work-related injury on 10 March 2018 (the last shift that the Applicant worked). It is the Respondent’s view that the employment relationship had ceased at the time of this notification.
On or around 16 August 2018, the Respondent was advised by WorkCover that the Applicant’s application for compensation for the 10 March 2018 injury had not been accepted and that the Applicant had been informed.
The Respondent states that the Applicant made no attempt to enquire about the status of his employment after the provision of the medical certificate dated 17 April 2018, and after he was verbally notified that he was being removed from the employer’s books on or around 27 April 2018.
Included in the materials filed was a document titled WorkCover Queensland Communications Report (WC Report).[9] The Report appears to be a record of discussions held between WorkCover and the Respondent or the ‘Claimant’ who was the Applicant. The WC Report shows that the Applicant had two telephone discussions with WorkCover on 25 June 2018. The first concerned the Applicant advising of recent MRI findings and the second, confirmed receipt of the Applicant’s medical certificate, advised that WorkCover was unable to open the Applicant’s claim as it was denied, and that should the Applicant want WorkCover’s decision reviewed by the Regulator it would need to be lodged within three months ‘of receiving the RFD’.
By email dated Thursday, 16 August 2018, the Assistant Manager HR & Training of the Respondent emailed WorkCover stating:
We have not heard anything about Cory for the past few weeks. Just wondering if you have any news on this case?[10]
The WC Report showed that the Respondent called WorkCover on 17 August 2018 asking about the status of the Applicant’s two claims and was informed that both had been denied.
On or around 17 December 2021, the Respondent received notification that the second WorkCover claim had been accepted.
In September 2022, the Applicant attended the workplace and queried about the location of some personal belongings, specifically knives which he said he had left in the kitchen when he last performed work on 10 March 2018.
According to the Respondent, a further claim was registered by the Applicant on 27 November 2023 and was closed in January 2024. In addition, a notice of claim for damages was registered by the Applicant on 13 April 2022 and was also closed in January 2024.
On 22 April 2024, the Respondent is said to have issued correspondence to the Applicant in the following terms:
Thank you for your recent communication regarding the cessation of your employment in 2018. As you are aware, I was not performing my current role at this time, so your patience has been appreciated whilst I reviewed this matter.
Our records indicate that the last time you performed a shift for the business was on or around 10th March 2018. As an employee of the business, you were aware of your obligations regarding timely communication and the provision of medical certificates to substantiate a fitness or an unfitness for work. Our records further indicate that we received a medical certificate from you on or around 4 April 2018, and that this is the last of the communication we had received from you about your employment.
Our records indicate that you failed to communicate your intentions regarding your work capacity, that you did not continue to furnish necessary medical documentation and/or clearance and that at no time did you express any intention to continue on with your contract of employment. Indeed, it has been over six years since you last worked for us, over which time there has been no attempt to perform or discharge the obligations under the contract of employment.
Based on this, it is plain that there was no intention that the contract be further performed, nor an intention on your part to be bound by a contract of employment.
As such, the employer had accepted the repudiation and confirmed the cessation of your
employment as of 27 April 2018.If you have any questions about this letter, please contact me via return email or on (07) 5509 8081.
Date of dismissal
The Respondent asserts that it dismissed the Applicant as of 27 April 2018, when it accepted the Applicant’s repudiation of his employment contract. Whilst I do not agree with the Respondent’s contention that the Applicant’s dismissal took effect on 27 April 2018, I have nevertheless found that the Applicant’s dismissal took effect on 4 July 2018.
The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[11] described the concept of repudiation in the following terms:
The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or a fundamental obligation under it.
In Gelagotis v Esso Australia Pty Ltd[12] a Full Bench of this Commission considered repudiatory conduct by an employee, expressing:
The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omission and not on uncommunicated intention.
The Applicant went to great lengths to detail that since 2018, he had contacted the Respondent many times to see if there were light duties available and if could receive his holiday pay. The Applicant said that there had been four different HR Managers since 2018 and in this time, it seemed to him that his case had been ignored. The Applicant said that when a HR Manager took over from a predecessor, the new HR Manager had no idea about what was going on (presumedly with his case) and would advise him that they would investigate it. In January 2024, the Applicant visited the current HR Manager and asked for his holiday pay and his employment status.
The Applicant notes that on 22 April 2024, he received a reply that his employment was terminated back in April of 2018. According to the Applicant, this was the first time he had heard that his employment had been terminated. The Applicant further notes that he received back pay of his salary in 2022 from the Respondent through WorkCover for the period of 2018-2022.
In respect of the Applicant’s contention of having kept in contact with the Respondent’s HR Managers for a period of approximately five and half years, I note the following. The importance of approaching fact‑finding based on the contemporaneous documentary record and objective circumstances was described by Lee J in Transport Workers’ Union v Qantas (No. 1).[13] His Honour noted that what matters most is the proper construction of contemporaneous notes and documents and the probabilities that can be derived from those notes and other objective facts. Such approach is premised on the assumption that contemporaneous notes and documents are the extemporaneous and unvarnished product of the conduct of internal dealings or communications between contesting parties, and that confidence can be placed on the contemporaneous record, particularly where that record is unfiltered and sufficiently complete. It is the documentary evidence that I prefer rather than the Applicant’s contention of having made contact with multiple HR Managers over a period of consecutive years. This is particularly the case when the Applicant has no evidence to corroborate such assertion.
Some of the Applicant’s documents were filed on the morning of the hearing. I accepted such late filing on the basis that plausible reason was provided for such tardiness and that the Respondent, having had the opportunity to consider the materials, was not prejudiced. Within those documents were several medical certificates. The Respondent conceded to having received two of the three medical certificates but submitted that it had not received the Work Capacity Certificate dated 25 June 2018 that certified that the Applicant had no functional capacity for any type of work until (which was left blank).
According to the Respondent, on or around 17 April 2018, the Applicant furnished a medical certificate that provided he was unfit for work due to a medical condition. The Respondent says that this is the last medical certificate it received from the Applicant. The Applicant acknowledges having met with a representative of the Respondent on 4 April 2018 and confirming that he would require approximately three weeks off work.
However, the email dated 12 April 2018, from the Director of Human Resources of the Respondent sent to ‘[email protected]’ stated that the Applicant had advised that he would need three months off.[14]
This documentation sets out a narrative that conflicts with the Applicant’s account of requiring three weeks off work. It supports a finding that from early to mid-April 2018, the Applicant required three months off work due to incapacity. This would take the Applicant through to July 2018 – which accords with the timing of the letter that may, or may not, have been sent from the Respondent’s Director of Human Resources to the Applicant which stated:
As per your medical certificate received by us on 17 April 2018, noting that you are unfit for duties for the period 4 April 2018 - 4 July 2018, we hereby confirm your request for approved Leave Without Pay.
You are required to advise us in writing 7 days prior to the 4 July 2018 advising of your medical
fitness and ability to return to your usual occupation.[15]
Whether or not the letter referred to at paragraph [34] was sent to the Applicant, it is evident that such document supports the Respondent’s contention that the Applicant required three months off work, which aligns with the Respondent’s correspondence to WorkCover. Post July 2018, the Applicant brings no evidence to support a finding that after the three months leave without pay, he advised the Respondent of his fitness to return to work or, alternatively, that he provided medical certificates to support his ongoing absences.
Whilst the Respondent received correspondence from WorkCover in respect of a further WorkCover claim by the Applicant in or around 11 July 2018, and had further communication with WorkCover beyond this date, ultimately the obligation falls upon the employee, in this case the Applicant, to furnish the necessary medical evidence to their employer to support an ongoing absence from the workplace. The Applicant neglected to do so. With the Applicant’s workers compensation claim having been declined on or around 16 August 2018, the Applicant provides no plausible reason as to why he did not continue communicating with the Respondent about his employment.
It is well-established that a termination of employment takes effect when it has been communicated to the employee. However, in these circumstances it is not apparent that the Respondent expressly communicated to the Applicant that he had been dismissed. Whilst the Respondent contends that there was verbal notification to the Applicant that he was being removed from the Respondent’s books, that does not, in my view, constitute express communication that the Applicant had been dismissed.
However, the circumstances before me are somewhat unusual. The Respondent appears to have had a reasonably high turnover of Human Resources personnel and in that same period changes to the business. At the same time, the Applicant has taken an extended period of absence, and, in my view, has not taken steps to provide to the Respondent medical evidence about his fitness or ability to return to work from 4 July 2018. It follows that on any objective level the Applicant’s conduct from 4 July 2018 conveyed to the Respondent the renunciation either of the Applicant’s employment contract as a whole or a fundamental obligation under it – hence allowing the Respondent to terminate the Applicant’s employment as of 4 July 2018. Furthermore, as of 4 July 2018, the Applicant knew, or at least had a reasonably opportunity to find out, that he had been dismissed – given he had failed to provide medical evidence to the Respondent supporting his extended period of absence.
It follows that the Applicant’s unfair dismissal application was filed approximately 2,107 days outside of the statutory period set by s 394(2) of the Act. Therefore, consideration turns to whether an extension of time in which to make his unfair dismissal application should be granted.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[16] It is accepted that 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, can be considered exceptional.[17]
4.1 Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[18] 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.[19]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[20] However, the circumstances from the time of the dismissal are 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.[21]
Clearly the focus of the Applicant in this case was on the date of dismissal notwithstanding that clear directions were provided both in writing and on the day of hearing, that if the termination of employment took effect on the date as asserted by the Respondent, then the unfair dismissal application was made outside of the statutory period and the Commission must then consider whether to grant an extension of time. In this respect, s 394(3) of the Act was traversed at the commencement of the hearing, and it is observed that the Applicant was represented by a lawyer.
The Applicant states that the reason for the delay in making his application was that he was under physical and psychological incapacity due to his workplace injury. There is no documentary evidence to support a finding that the Applicant suffered from psychological incapacity and as to physical incapacity, the evidence before me does not suggest that the Applicant was so physically incapacitated that he was unable to make an unfair dismissal application.
It is apparent from the evidence filed, that throughout the delay period the Applicant had sufficient cognitive competence to communicate with WorkCover either directly or through his representative, concerning his workers’ compensation claim (including a review of the same), the making of a further claim registered on 27 November 2023, and his notice of claim for damages made on 13 April 2022.
It is observed that in the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[22]
In my view the reasons for the delay when considered together are insufficient to explain part of, or the entirety of, the delay period. This finding weighs against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period, albeit I have considered the circumstances from the time of the dismissal in order to determine whether there is a reason for the delay beyond the 21-day period
4.2 Whether the person first became aware of the dismissal after it had taken effect
As noted, I am of the view that the Applicant became aware of the termination of his employment on 4 July 2018. I am appreciative that the Respondent did not expressly communicate the termination of employment as of that date but have found that the Applicant had a reasonable opportunity to find out his dismissal took effect at this time. In the circumstances, I consider this factor to be a neutral consideration when weighing whether the circumstances are exceptional.
4.3 Action taken by the person to dispute the dismissal
The Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. However, I consider this factor neutral in all the circumstances.
4.4 Prejudice to the employer
In GHD Pty Ltd v Black (GHD), the Full Bench held on appeal that a 168-day delay in making an application may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[23]
At paragraph [51] of GHD, the Full Bench expressed that it was well accepted that a lengthy delay gives rise to a general presumption of prejudice,[24] stating:
The 168-day delay in Mr Black’s general protections application can only be described as lengthy. A relevant prejudice is one that GHD would not have suffered, had the application been made within 21 days of the dismissal taking effect.[25] Having regard to the contentions made by Mr Black in his general protections application, and his reliance upon alleged discussions and meetings, it is conceivable that, consistent with GHD’s submissions, a significant delay of 168 days may impair the recollection or availability of GHD’s witnesses and thereby give rise to a relevant prejudice. (footnotes omitted)
The Respondent submitted that many of the employees of the Respondent who were engaged in the relevant positions at the time of the Applicant’s dismissal are no longer employed, meaning the Respondent no longer has access to the people it would otherwise call as witnesses in the proceedings. Further, it noted that due to the passage of time, relevant evidence has been lost to the Respondent.[26]
The Respondent submitted that its business has undergone considerable workplace changes with potential acquisitions, significant change in corporate partnerships necessitating name changes to the Hotel, and an abnormally high turnover in key positions including that of the General Manager of the Hotel and the Director of Human Resources. These factors had impacted the Respondent’s access to records and documentation, with no staff member referred to in the Applicant’s application currently employed or contactable by the business in order to provide direct evidence of events from the relevant time, with the exception of Mr Hylton-Smith, who the Applicant did communicate with in 2024.
I accept the proposition advanced by the Respondent that a lengthy delay may impair the recollection or availability of a witness and thereby give rise to a relevant prejudice. In this matter the delay is significant. Some five and a half years having passed since the work relationship with the Respondent came to an end.
The length of time that has passed in respect of the delay, the protracted nature of the dispute – spanning over some five and a half years and the potential involvement of witnesses who are no longer in the employ of the Respondent, are all factors that steer toward a finding that the Respondent would suffer prejudice that it otherwise would not have been subjected to, had the application been made within the requisite statutory period.
The proposition expressed in GHD that a lengthy delay gives rise to a general presumption of prejudice, is sound and undisturbed. The delay is significant and for the reasons cited, I find that the Respondent would suffer prejudice that it would not otherwise have experienced had the application been made in time. This factor weighs against a finding of exceptional circumstances.
4.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[27] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. 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.[28]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[29] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. As such, the merits in this case are a neutral factor.
It is however noted that this application to date has been hampered by a paucity of evidence.
4.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases 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.[30]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, and as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has not provided a satisfactory explanation for the entirety of the delay in making his application. Were the application to proceed, I am of the view that the Respondent would be subjected to significant prejudice, which otherwise would not have arisen had the Applicant made his application in July 2018. The remaining matters I need to consider tell neither for nor against the application for an extension of time. In these circumstances, having considered all evidence and submissions, I am not convinced there are exceptional circumstances such that an extension of time should be granted. As such, in the absence of a finding of exceptional circumstances, it is unnecessary to consider whether it is fair and equitable to grant an extension.
It is noted, I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act. The reasons for doing so were recorded on transcript.
DEPUTY PRESIDENT
Appearances:
Melissa Demarco for the Applicant
Melissa Butters for the Respondent
Hearing details:
2024
Perth (by telephone):
15 July.
[1] PR777091.
[2] Medical Certificate pg 1.
[3] Medical Certificate pg 2.
[4] Suitable Duties Cory Bretagne pg.1.
[5] Medical Certificate pg 3.
[6] WorkCover Documents pg.6
[7] WorkCover Documents pg.8
[8] Digital Hearing Book pg. 42.
[9] WorkCover Documents pg.13
[10] WorkCover Documents pg.10
[11] (2007) 233 CLR 115, 44.
[12] [2018] FWCFB 6092, [119].
[13] Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873 [16]-[17].
[14] WorkCover Documents pg.8
[15] Digital Hearing Book pg. 42.
[16] (2011) 203 IR 1, 5 [13].
[17] Ibid 6 [13].
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, 165 [39].
[19] Ibid.
[20] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[21] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[22] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[23] [2023] FWCFB 38, [51].
[24] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd
(1995) 67 IR 298, 299–300
[25] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].
[26] Wedesweiller v Cole (1983) 47 ALR 528.
[27] (1997) 140 IR 1.
[28] Ibid 11.
[29] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[30] [2015] FWC 8885, [29].
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