Daniel Tracey v Diamond Protection Pty Ltd
[2020] FWC 5438
•27 OCTOBER 2020
| [2020] FWC 5438 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Tracey
v
Diamond Protection Pty Ltd
(U2020/12510)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 27 OCTOBER 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Mr Daniel Tracey for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Cth) (Act).
[2] Mr Tracey made an application for an unfair dismissal remedy under s.394 of the Act on 17 September 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). The respondent objects to Mr Tracey’s application on the basis that it was not filed within 21 days after his dismissal took effect.
[3] For the reasons that follow:
(a) I find that Mr Tracey’s application was filed outside the 21-day timeframe prescribed by s.394(2)(a) of the Act; and
(b) I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application.
[4] The application is dismissed.
Background
[5] Mr Tracey commenced full-time employment with the respondent on 2 July 2018 as a Contract Manger. 1
[6] On 10 June 2020, Mr Tracey was issued a final warning letter. The final warning letter identified the following matters said to be the subject of meetings held on 26 December 2019, 9 April and 9 June 2020: 2
“During our meetings, the following issues have been raised with you:
1. You are not contactable on most mornings, evenings and weekends;
2. You do not respond promptly to messages as required, including email and phone;
3. Your time management is very poor. You have failed to deal with urgent emails and reports in a timely and organized manner. In addition, you have failed to deal with important operational issues in a timely manner. This subject has been conveyed to you by Diamond’s Director Arie Kliger on several occasions without a noticeable improvement.
4. Notably you arrive at work late in the morning and leave the client site early in the afternoon;
5. You have failed to attend the work place on many days, Monday to Friday without informing the client and the directors;
6. Complaints have been received from Ford management in relation to your communication style, organization and people skills, and leadership, all of which are below the level expected of an Contract Manager;
7. You have failed to complete client reports within the required time frame;
8. Concerns have been raised about your inability to deal with urgent employee human resources or industrial relations situations;
9. You have not obtained signed amendments to employee agreements when changes to employment have occurred;
10. You are utilizing excessive overtime and sub-contractors at Ford sites, which results in significant financial losses to Diamond;
11. Your current work ethic shows a lack of suitability to the role of a Contract Manager.”
[7] The final warning letter directed Mr Tracey to comply with the respondent’s directions. It provided as follows:
“You must immediately:
1. Attend the work-place on Monday to Friday between the hours 0700 – 1700;
2. Be contactable in accordance with the Diamond business needs, including weekends and evenings;
3. Arrive to work on time and not leave until the cessation of each day;
4. Inform the Directors of Diamond at any time that you are going to (A) be late to work, (B) need to leave early from work, or (C) be unable to attend work;
5. Reduce the current usage of overtime and sub-contractors;
6. Complete all client reports within the required timeframe; and
7. Ensure that all employee contracts are up to date.”
[8] Mr Tracey was also directed to complete a Contract Manager Report and submit the same to the respondent’s two directors each day. The final warning letter advised Mr Tracey that a failure to comply with the respondent’s directions may result in termination of employment.
[9] On 13 August 2020, Mr Tracey attended a teleconference with the respondent during which the respondent raised concerns about Mr Tracey’s attendance at work and his completion of the Contract Manager Report. 3 On 14 August 2020, the respondent emailed a letter of allegations to Mr Tracey’s work email account in which it was said that Mr Tracey:4
(a) Failed on most days from 21 April 2020 to complete tasks required by the Daily Contract Manager Report.
(b) Breached the respondent’s instructions of 21 April 2020 to not work from home on 31 occasions between 22 April to 29 May 2020.
(c) Was absent from work on at least 56 occasions during his employment without notification and received ordinary wages for those days.
(d) Declared in his timesheets that he attended work when he was in fact at home.
[10] Mr Tracey was given an opportunity to respond to the matters summarised at items (a) to (d) above by midday 18 August 2020. At 11:56am on 18 August 2020, Mr Tracey emailed the respondent requesting the provision of supplementary material relied upon by the respondent in support of the allegations. 5 On 19 August 2020, Mr Tracey was provided with the material relied upon by the respondent. Mr Tracey’s response to the allegations was extended to 5:00pm 20 August 2020. Mr Tracey was advised that in the absence of a satisfactory response or any response at all by this date his employment would be terminated.6
[11] At 4:27pm on 20 August 2020, the respondent received a read receipt from Mr Tracey to its 19 August 2020 correspondence. 7 The respondent says that this evidence discloses that Mr Tracey had not read the 19 August 2020 correspondence until 33 minutes prior to the expiration of the response time.8
[12] The respondent says that at 4:59pm the same day, Mr Tracey emailed the respondent advising that he was unable to effectively respond to the allegations. Mr Tracey is said to have advised that by 24 August 2020 he would “construct a document that breaks down the issues, detailing my requests as they relate to each specific point you have raised. This will allow you to address each item individually, hopefully ensuring nothing gets missed and thus allowing me to provide an effective response.” 9
[13] At 1:45pm on 21 August 2020, the respondent emailed to Mr Tracey’s work email account a termination letter. The termination letter advised that effective the same day Mr Tracey’s employment was terminated for the following reasons: 10
(a) Failing to follow a lawful and reasonable direction to complete the Contract Manager Report.
(b) Failing to follow a lawful and reasonable direction to not work from home.
(c) Recording in timesheets that Mr Tracey was at the client’s site, however phone records indicate that Mr Tracey was at home at such time.
[14] The termination letter further advised that Mr Tracey was required to return the respondent’s property and equipment by 24 August 2020.
[15] A copy of the termination letter was also sent at 1:47pm on 21 August 2020 to Mr Tracey’s personal email account (to which his payslips were sent), and by express post which was received by Mr Tracey on 31 August 2020. 11
[16] The respondent says that after business hours on 21 August 2020 it “shut off” Mr Tracey’s access to his work email account. 12 In contradiction of this, Mr Tracey says that he used his work email account to provide the respondent with his response to the letter of allegations on 24 August 2020.13 However, the respondent submits that it did not receive a response from Mr Tracey on 24 August 2020 or subsequently.14
[17] On 31 August 2020, Mr Tracey emailed the respondent advising that he had become aware of the dismissal that day following receipt of the termination letter by post. In his email, Mr Tracey requested that he be provided with documents relating to previous disciplinary matters from approximately 18 December 2019, his employee file and an employment separation certificate. Mr Tracey said that he expected the termination date to be identified as 31 August 2020. 15
When did the dismissal take effect?
[18] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or pursuant to s.394(3) within such further period as the Commission allows. Relevantly, a Full Bench in Ayub v NSW Trains 16 concluded that the 21-day period for lodgement of an unfair dismissal application should not be interpreted to begin to run before an employee becomes aware of the dismissal, or has at least had a reasonable opportunity to become aware of it.17
[19] In the determination of Mr Tracey’s application, it is first necessary to ascertain the date that Mr Tracey’s dismissal took effect. I understand that Mr Tracey contends as follows: 18
(a) Mr Tracey did not become aware of his dismissal until 31 August 2020 when he received the termination letter in the post.
(b) Mr Tracey’s employment agreement with the respondent prescribes a process for issuing notices in person, by post or by facsimile, and does not include email. Mr Tracey contends that his dismissal could not be effected by email.
When did Mr Tracey become aware or have a reasonable opportunity to become aware of his dismissal?
[20] The evidence before the Commission, which I accept, is that the termination letter was posted to Mr Tracey on 24 August 2020 and was received by him on 31 August 2020. 19 Mr Tracey submits that he did not become aware of his dismissal until 31 August 2020. While the termination letter was also sent by email on 21 August 2020, Mr Tracey denies having read the termination letter sent to his personal email account before 31 August 2020 and contends that he never read the termination letter sent to his work email account.20
[21] The respondent contends that Mr Tracey became aware of his dismissal or had a reasonable opportunity to become aware of his dismissal from 21 August 2020 by way of: 21
(a) the email attaching the termination letter sent to Mr Tracey’s work email account at 1:45pm on 21 August 2020, access to which was not “shut off” by the respondent until the evening of 21 August 2020; or
(b) the email attaching the termination letter sent to Mr Tracey’s personal email account at 1:47pm on 21 August 2020, being the email address to which his payslips were sent throughout his employment.
[22] In support of its position, the respondent relies upon the following:
(a) a print screen of Mr Tracey’s work email account evidencing that the termination letter was received at 1:45pm on 21 August 2020; 22
(b) a print screen of Mr Tracey’s work email account evidencing that the termination letter, as well as emails received by Mr Tracey’s work email account after 1:45pm on 21 August 2020 were opened; 23
(c) a print screen of Mr Tracey’s work email account which discloses that Mr Tracey forwarded to his personal email account correspondence from the respondent dated 13 and 14 August 2020 about his conduct; 24
(d) a copy of Mr Tracey’s email dated 20 August 2020 to the respondent, which was sent from his work email account, but to which Mr Tracey blind copied his personal email account; 25 and
(e) Mr Tracey’s payslips were sent to his personal email account during the period of his employment. 26
[23] Further, the respondent submits that Mr Tracey’s conduct in the period 22 to 31 August 2020 supports its contention that Mr Tracey became aware of his dismissal on 21 August 2020. It says that Mr Tracey did not: 27
(a) attend work on Monday 24 August 2020 and has produced no evidence of the reason for not attending work in this period;
(b) provide a response to the letter of allegations by 24 August 2020 as Mr Tracey said he would;
(c) raise any enquiry with the respondent as to why his work email account had been closed; and
(d) communicate with the respondent or any of the respondent’s clients.
[24] In response to these matters, Mr Tracey said that he had in fact provided a response to the letter of allegations from his work email account on 24 August 2020, “however it is now apparent that it was not sent due to my access to the account being shut off at some time prior to Monday 24th August.” 28 When asked whether he had read the dismissal letter dated 21 August 2020 upon accessing his work email account on 24 August 2020, Mr Tracey said “I can’t confirm that I checked the email on that date. All I can confirm is that I sent the email to him. I can’t confirm that I had gone through the inbox. All I’d done is type an email. So I guess the short answer, I can’t confirm when I checked it.” The respondent denies having received any response from Mr Tracey. Its review of Mr Tracey’s work email account discloses that there are no emails in the sent, deleted, draft or outbox folders dated 24 August 2020.29
[25] Further, Mr Tracey’s evidence is that he worked on various projects from 22 to 31 August 2020 at home. However, Mr Tracey says that he does not recall speaking with the respondent during this period, and no work was submitted by him to the respondent “because that’s not the nature of my position. There would be no work that I would submit to them in normal operations.” Mr Tracey says that he did not complete the Daily Contract Report because he did not attend the work site. The respondent contends that work cannot performed without access to a work email account. It is said that Mr Tracey’s work email account had been shut off after business hours on 21 August 2020.
[26] The Full Bench in Ayub v NSW Trains considered the situation where an employee is informed by email that they have been dismissed. The Full Bench observed:
“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”
[27] The evidence supports a finding that Mr Tracey utilised both his work and personal email accounts.
[28] It is not in contest that Mr Tracey was working on 21 August 2020 when the termination letter was received in the inbox of his work email account. It is not contended by Mr Tracey that he was unable to access his work email account during business hours on this day. Accordingly, the termination letter was “capable of being retrieved” by Mr Tracey after 1:45pm on 21 August 2020 and prior to access to his work email account being shut off after business hours that day. If Mr Tracey simply refused to read the email in this period, the Full Bench in Ayub v NSW Trains makes clear that this does not operate to delay the effective date of the dismissal. However, the evidence before the Commission, which I accept, discloses that the email attaching the termination letter was opened as were emails subsequently received by Mr Tracey’s work email account during business hours on 21 August 2020. Mr Tracey did not seek to contradict or explain this evidence other than to say that he had not read the termination letter sent to his work email account.
[29] Further, Mr Tracey accepts that the termination letter was received by his personal email account at 1:47pm on 21 August 2020. The probative evidence before the Commission is that Mr Tracey utilises his personal email account for work related matters, including for the provision of payslips. It is not contended by Mr Tracey that he was unable to access his personal email account in the period from 1:47pm 21 August to 31 August 2020 (being the date the termination letter was received by Mr Tracey in the post, and which he says prompted him to check his personal email account). The termination letter was therefore “capable of being retrieved” on 21 August 2020 after 1:47pm from Mr Tracey’s personal email account. As earlier observed, a simple refusal to read the email does not operate to delay the effective date of the dismissal.
[30] Having regard to the above, I am satisfied that Mr Tracey had a reasonable opportunity to become aware of his dismissal on 21 August 2020.
[31] Further, Mr Tracey’s subsequent conduct does not support his contention that he performed work for the respondent until 31 August 2020. Mr Tracey did not enquire why he was unable to access or retrieve emails from his work email account after 21 August 2020 because it was “shut off” by the respondent. Even if Mr Tracey did have access to his work email account on 24 August 2020 as he contends, 30 Mr Tracey has not provided an acceptable explanation as to why he did not become aware of the termination letter in the period 24 to 31 August 2020. Moreover, there is no probative evidence before the Commission of the work said to be performed by Mr Tracey in the period 22 to 31 August 2020. When asked what work he performed in this period Mr Tracey referred broadly to his project work in the weeks prior to the dismissal. Mr Tracey was given an opportunity to clarify his evidence as it related to the period 22 to 31 August 2020. In response, Mr Tracey said that he would “have to look into it a bit further.” Mr Tracey’s subsequent evidence was that the work primarily related to COVID-19 and a project for equipment storage at a work site. Given the uncertain way in which Mr Tracey gave his evidence in respect of this matter, I do not find Mr Tracey’s evidence compelling and therefore do not accept it. In light of these matters, I am not persuaded that Mr Tracey performed work for the respondent in the period 22 to 31 August 2020.
The employment agreement
[32] As to Mr Tracey’s contention that his dismissal could not be communicated to him by email, Mr Tracey relies upon clause 17 of his employment agreement which provides as follows: 31
“17. Notices
a. A notice or other communication required or permitted to be served by a party on another party shall be in writing and may be served.
(i) by delivering it personally to that party; or
(ii) by sending it by pre-paid post, addressed to that party at his address set out in this Agreement or subsequently notified to each party from time to time; or
(iii) by facsimile to the facsimile number of the addressee.
b. A notice or other communication is deemed served;
(i) if delivered, upon delivery; or
(ii) if posted, in the expiration of two (2) business days after the date of posting; or
(iii) if sent by facsimile, upon confirmation of successful transmission to the addressee during the addressee’s normal business hours.”
[33] Mr Tracey submits that during the period of his employment the respondent has not relied upon email to communicate a termination to an employee. Mr Tracey says that serving a notice by email is at odds with clause 17 of his employment agreement. 32
[34] I do not accept Mr Tracey’s submission that notice of termination of employment could not be communicated to him by email. The employment agreement provides that notices shall be in writing and may be served in person, by post or by facsimile. The use of the word may in this context does not limit the service of a notice to these methods. Attaching the termination letter to an email satisfies the contractual obligation to communicate the notice to Mr Tracey in writing. In any event, as the High Court of Australia has made clear, a notice which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship. 33 I find that service of the termination letter by email to Mr Tracey was effective to terminate the employment relationship.
Conclusion
[35] I find that the 21-day period for Mr Tracey to lodge his unfair dismissal application runs from 21 August 2020. Mr Tracey’s application was lodged on 17 September 2020. The application was therefore lodged 6 days outside the 21-day timeframe for lodgement prescribed by s.394(2)(a) of the Act.
Statutory framework
[36] The Commission has the power pursuant to s.394(3) of the Act 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 by a Full Bench in Nulty v Blue Star Group Pty Ltd.34In 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. 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.
[37] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it is satisfied that there are exceptional circumstances taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[38] I consider each of these matters below.
Consideration
Reason for the delay: s.394(3(a)
[39] 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. 35 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.36
[40] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 12 to 17 September 2020.37 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.38
[41] Mr Tracey gave evidence that if the Commission determines that his application was not made within 21 days then late lodgement was occasioned by the high level of stress he experienced as a consequence of his dismissal, which he says had a profound effect on him.
[42] Mr Tracey does not explain how his feelings of stress contributed to the delay in lodging the application. Further, there is no probative evidence before the Commission supporting Mr Tracey’s contention. In these circumstances, I am not persuaded that the reason for the delay relied upon by Mr Tracey constitutes an acceptable explanation for any part of the delay. This weighs against the grant of an extension.
Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)
[43] As earlier found, Mr Tracey had a reasonable opportunity to become aware of the dismissal on 21 August 2020. Accordingly, Mr Tracey had 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.
Action taken by the person to dispute the dismissal: s.394(3)(c)
[44] Upon receipt of the termination letter in the mail on 31 August 2020, Mr Tracey emailed the respondent. Mr Tracey requested that the respondent provide to him documents “relating to disciplinary matters dating back to 18 December 2019, a complete copy of my HR file, and an employment separation certificate.” Mr Tracey’s email also conveyed his feelings of “disappointment, stress and to be honest, shock” regarding the method adopted by the respondent to notify him of the dismissal. Mr Tracey’s email concluded by stating, “I expect the date of termination to be today, Monday the 31st August.” 39
[45] On 3 September 2020, Mr Tracey was advised by the respondent that the effective date of termination would remain 21 August 2020 and a copy of Mr Tracey’s employee records and a separation certificate would be emailed to him. 40
[46] I accept that Mr Tracey’s email put the respondent on notice that he held concerns about his dismissal. I find that Mr Tracey’s request for his employment records constitutes a step to dispute his dismissal. That he did so weighs in his favour.
Prejudice to the employer: s.394(3)(d)
[47] While a long delay gives rise to a general presumption of prejudice, 41 it is not contended that any prejudice to the respondent would arise if an extension of time was granted.42
[48] I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. 43 I consider this to be a neutral consideration.
Merits of the application: s.394(3)(e)
[49] The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.44
[50] The respondent submits that it had valid reasons for dismissing Mr Tracey in light of (1) Mr Tracey’s refusal to follow the directions issued to him by the respondent on 21 April 2020 and 10 June 2020, and (2) Mr Tracey’s alleged failure to attend work. The respondent further contends that Mr Tracey’s refusal to take part in the investigation process by failing to respond to any of the allegations put to him in letters of 14 and 19 August 2020 are “detrimental” to his application.
[51] Mr Tracey contends that the respondent failed to observe its own procedures for terminating his employment and withheld critical information as it related to the allegations. Mr Tracey says that in these circumstances it was “almost impossible” for him to address the respondent’s concerns regarding his conduct. Mr Tracey contends that by accepting his timesheets the respondent had authorised his performance of work from home, and the direction to complete the daily Contract Manager Report was complied with. Further, Mr Tracey submits that he received no prior warnings or counselling in relation to the Contract Manager Report. He says that he was directed to attend disciplinary meetings without advanced notice and without knowledge of the purpose of the meetings. Mr Tracey says that he was therefore not afforded an opportunity to attend the disciplinary meetings with representation. 45
[52] Mr Tracey’s contentions challenge the reasons for the dismissal and allege procedural shortcomings in the process adopted by the respondent to terminate his employment. This is at odds with the respondent’s position. The merits case requires the determination of contested facts, which have not been the subject of evidence before me. This proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. It is therefore not possible to make any firm or detailed assessment of the merits of the application. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: s.394(3)(f)
[53] Mr Tracey contends that other employees of the respondent were dismissed by in-person communication from the respondent. Mr Tracey says that he was treated differently to other employees. However, there is no evidence before the Commission explaining the circumstances of the other employees and the extent to which they bear any similarity to the circumstances of Mr Tracey’s dismissal.
[54] The respondent has not advanced a position in response to Mr Tracey’s contention.
[55] I am not satisfied that the criteria of fairness as between Mr Tracey and other persons in a similar position weighs strongly in favour of either party. I therefore find it to be a neutral consideration.
Conclusion
[56] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time either when the various circumstances are considered individually or together.
[57] Given this, there is no basis for me to allow an extension of time. Mr Tracey’s application for an extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
D Tracey, Applicant.
J Sanders on behalf of the Respondent.
Hearing details:
2020
Melbourne (by telephone):
October 13.
Printed by authority of the Commonwealth Government Printer
<PR723493>
1 Management Employment Agreement – Diamond Protection Pty Ltd (Employment Agreement)
2 Form F3 - Employer response to unfair dismissal application dated 7 October 2020 (Form F3), attachment DP-2
3 Form F3 at 3.2 [7]
4 Form F3 at 3.2 [9] and attachment DP-3
5 Form F3 at 3.2 [10] and attachment DP-4
6 Form F3 at 3.2 [11] and attachment DP-5
7 Form F3, attachment DP-6
8 Form F3 at 3.2 [12]
9 Ibid [13]
10 Form F3, attachments DP-7 (termination email) and DP-8; Witness statement of Mr Daniel Tracey dated 30 September 2020 (Tracey statement) at [1.1]
11 Form F3 at 3.2 [15] and attachment DP-7 (pay advice); Tracey statement
12 Form F3 at 3.2 [15(b)]
13 Tracey statement at [2.2]
14 Respondent’s outline of submissions dated 7 October 2020 (Respondent’s submissions) at [18(b)] and [29]
15 Tracey statement at [1.1]
16 [2016] FWCFB 5500
17 Ibid at [36]
18 Tracey statement at [1.1] and [3]
19 Tracey statement
20 Ibid at [1.1]
21 Respondent’s submissions at [10]
22 Form F3 at 3.2 [16] and attachment DP-9
23 Form F3 at 3.2 [25(a)] and attachment DP-12
24 Form F3 at 3.2 [25(b)] and attachment DP-13
25 Form F3 at 3.2 [25(c)] and attachment DP-13
26 Form F3 at 3.2 [15(a)] and attachment DP-7 (pay advice)
27 Respondent’s submissions at [18]-[20]
28 Tracey statement at [2.2]
29 Form F3 at 3.2 [25(d)]
30 Tracey statement at [2] and [2.2]
31 Tracey statement at [3]; Employment Agreement
32 Form F2 – Unfair dismissal application dated 17 September 2020 (Form F2) at [1.5]
33 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454 - 455; Byrne v Australian Airlines Limited (1995) 185 CLR 410; Metropolitan Fire and Emergency Services Board v Garth Duggan[2017] FWCFB 4878 at [22]
34 [2011] 203 IR 1
35 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
36 Ibid
37 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]
38 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]
39 Tracey statement at [1.1]
40 Ibid at [2]
41 Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556
42 Respondent’s submissions at [34]
43 C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
44 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]
45 Form F2 at [3.2]
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