Danielle Smith v Argosy Agricultural Group Pty Ltd T/A Sydney Polo Club

[2016] FWC 8297

[2016] FWC 8297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Danielle Smith
v
Argosy Agricultural Group Pty Ltd T/A Sydney Polo Club
(C2016/2771)

COMMISSIONER CIRKOVIC MELBOURNE, 18 NOVEMBER 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 26 February 2016, Ms Danielle Smith (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Argosy Agricultural Group Pty Ltd T/A Sydney Polo Club (Respondent).

[2] The Applicant commenced employment with the Respondent on 3 September 2015 1. She was employed as a Wedding Coordinator. She says that she was dismissed on 29 January 2016 and the dismissal took effect on 13 February 2016. The Applicant provided five other dates as alternatives to 13 February 2016, being 9, 5, 4, 3 and 2 February 2016.

[3] The Respondent submitted that the dismissal took effect on 29 January 2016.

[4] If the dismissal took effect on 13, 9 or 5 February 2016 the application is in time. If the dismissal took effect on 4, 3 or 2 February 2016 the application was lodged 1, 2 or 3 day/s out of time. If the dismissal took effect on 29 January 2016 the application was lodged 7 days out of time.

Alleged Contravention

[5] The Applicant submits that she was dismissed because she had made a complaint regarding the behaviour of the owner of the company. 2 A breach of s.340 is alleged.

Respondent’s Submissions

[6] The Respondent submits that the Applicant was dismissed for not keeping information confidential, releasing unauthorised statements and photos on Facebook and to suppliers. 3 The Respondent denies the Applicant made a complaint to it regarding the behaviour of the owner of the company.4 The Respondent submits that at the ‘termination meeting’ on 29 January 2016 the Applicant was given the option of working out a two week notice period which she declined and advised she would finish work immediately.5

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

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

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

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

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

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 6where 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]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. 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. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … 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.’

[31] Hence, the decision emphasised that 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Background

[13] On 15 July 2016, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was heard on 30 August 2016 (the Hearing).

[14] The Applicant was represented by Mr John Laxon of Laxon Lex Lawyers. The Respondent was represented by Ms Helen Carter of PCC Lawyers.

Effective Date of Dismissal

[15] There is a dispute about the date on which the Applicant’s dismissal took effect.

Applicant’s Submissions

[16] The Applicant submits that the application was not lodged out of time. As noted above at [2] she says she was dismissed on 29 January 2016 and the dismissal took effect on 13 February 2016. Five other dates are provided as alternatives to 13 February 2016 (9, 5, 4, 3, and 2 February 2016). The Applicant states that on 29 January 2016 she was verbally given two weeks’ notice of termination and she was not required to work out the notice period. Further, on 30 January 2016, she performed her final day of work for the Respondent. 7

[17] At the Hearing, Mr Laxon conceded that if the Applicant was terminated on 4 February 2016, the application was indeed lodged out of time. 8

[18] It is further submitted that on 29 January 2016, the Applicant was verbally given the option of working out the two weeks’ notice, or ‘receiving payment in absentia’, in which case the date that the dismissal took effect was 13 February 2016. 9 The Applicant submits that the ‘offer of payment in absentia was not an offer of payment in lieu of notice per se, as the Applicant was given the option of continuing to perform her duties for the duration of the notice period, and therefore the payment was not a “substitute” for the provision of notice.10 The Applicant submitted that as she was not required to work out her notice period, she was in fact on “gardening leave” until such time as she was paid out her appropriate notice and other entitlements.11

[19] In the alternative the Applicant submits the date of her dismissal was 5 February 2016, being the date she received her final payment into her bank account from the Respondent. 12

[20] In the further alternative the Applicant submits that the dismissal took effect on 9 February 2016 13 ‘when written notice of termination was provided to the Applicant’.14

[21] The Applicant submits that if I do not accept that the application was made in time, ‘the date that the dismissal took effect must be regarded as being 2 February 2016’. 15 The Applicant points to s.36(2) of the Acts Interpretation Act 1901 (Cth) and the Fair Work Commission General Protections Bench Book 201616for her contention that if dismissal would otherwise take effect on a weekend or public holiday, it will instead be regarded as having taken effect on the next business day. ‘As the Applicant performed duties on 30 January 2016 (a Saturday), the date that the dismissal took effect would be the following Monday, being 2 February 2016’.17 I note that the Monday following Saturday, 30 January 2016 is in fact 1 February 2016, and not 2 February 2016.

Respondent’s Submissions

[22] The Respondent submits that on 29 January 2016, Ms Rebecca Higgins, Managing Director of the Respondent, had a meeting with the Applicant during which Ms Higgins verbally notified the Applicant that her employment was being terminated and gave the Applicant the option of working out her notice period. The Applicant advised that ‘she did not wish to work out her notice period and she would finish work immediately’. 18 The Respondent concedes that the Applicant returned to the workplace the following day to ‘carry out a short hand over of her duties’.19 Whilst the Respondent submits in its “Form F8A-Response to general protections application” that the date the dismissal took effect was 29 January 2016, at the Hearing, it submitted that the date of dismissal, ‘as a matter of law, was 30 January 2016’.20

[23] On 3 February 2016, the Respondent made a final payment to the Applicant for accrued annual leave and other entitlements. 21 On 9 February 2016, the Respondent emailed the Applicant ‘setting out the reasons as to why the Applicant’s employment had been terminated’.22

Findings – Effective Date of Dismissal

[24] A termination of employment ‘does not take effect unless it is communicated to the employee whose employment is being terminated’. 23

[25] The following facts are not in dispute:

• The Applicant was verbally advised by Ms Higgins on 29 January 2016 that her employment was being terminated; 24



• At that meeting, the Applicant was given the option of working out a two week notice period; 25



• The Applicant elected not to work out her two week notice period; 26



• The Applicant’s final day of work was on 30 January 2016; 27



• The Respondent made payment to the Applicant for entitlements owed on 3 February 2016; 28



• The Applicant received that payment on 5 February 2016. 29 This payment did not include a payment in lieu of notice.30

[26] The notion of “gardening leave” was introduced by Mr Laxon to characterise the Respondent’s offer to the Applicant to work out a two week notice period. There is simply no evidence before me to support such a conclusion. On the Applicant’s own evidence she rejected the Respondent’s offer to work out a notice period and further, elected to attend work for the last day on 30 January 2016. 31 I have no doubt that the Applicant knew full well that she was dismissed on 29 January 2016 and acted according to that belief. That may have been the end of the matter except that the Applicant chose to work on 30 January 2016.

[27] The Applicant further suggests that the failure by the Respondent to make payment of the Applicant’s entitlements until 3 February 2016 (received by the Applicant on 5 February 2016) alters the date the dismissal took effect. This alternate submission presupposes a conclusion that the dismissal does not take effect until such time as the Applicant receives final payment of entitlements and in lieu of notice (my emphasis). It is not in dispute that at the time of the Hearing the Respondent had not made any payment to the Applicant in lieu of notice. 32 Following the logic of this submission to its conclusion the dismissal potentially has not yet taken effect. This proposition is misconceived. The Applicant alternatively suggests that the dismissal took effect when she was provided with written reasons as to her termination on 9 February 2016, which she sought to characterise as ‘written notice of termination’.33

[28] I do not accept this proposition. The email sent by the Respondent to the Applicant on 9 February 2016 cannot be characterised as anything but a document seeking to specify the reasons for termination. The first sentence in fact reads:

“We think it is important to specify in writing the reason that your employment at Argosy Agricultural Group Pty Ltd was terminated”. 34

[29] The suggestion that a failure to make payment in lieu of notice delays the date the dismissal took effect is contrary to the many authorities that have dealt with this issue. For the sake of completeness I refer to the comments of Wilcox J in Siagian v Sanel Pty Ltd 35 where His Honour said:

“‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.”

[30] In Sutherland v Sydney Property Finders Pty Limited t/a Sydney Property Finders 36Deputy President Sams considered a circumstance where the Applicant was advised that his employment was terminated and that he would receive the applicable payment in lieu of notice. The applicant claimed that the effective date of his dismissal was at the expiration of the notice period. In that case there was also some delay in the final payment in lieu of notice made to the applicant. The Deputy President concluded:

“…the fact that there was some delay in making the in lieu payments cannot be held to prolong the employment relationship until such payments are made. Moreover, it is not uncommon for dismissed employees to challenge the payments made to them on termination. Often the payments are not made for many weeks, while the dispute is resolved or is simply delayed because of a company’s pay cycle. To suggest that these circumstances somehow means the employment relationship ‘remains on foot’ is illogical nonsense”. 37

[31] I agree with the reasoning of Deputy President Sams, that to suggest the effective date of dismissal might somehow be delayed because of a delay in payment of monies owed in lieu of notice, is a misunderstanding of the distinction between the contract of employment and the relationship of employment under that contract. In this case, there is no dispute between the parties that the terms and conditions of the Applicant’s employment were governed by the Argosy Agrictultural Group Enterprise Agreement 2013. 38 It provides for notice to be given pursuant to the NES. A failure of the Respondent to terminate without making payment in lieu of notice, while regrettable, does not alter the date the Applicant’s dismissal took effect. The result may be that in such a circumstance an employer has acted unlawfully and an employee’s recourse is to apply for appropriate remedy. To suggest that such a circumstance means the employment relationship “remains on foot” is misconceived. In this case, the Applicant’s expectation that she would be paid in lieu of notice does not alter the effective date of dismissal.

[32] For the reasons given above, I find that the Applicant’s dismissal took effect on 30 January 2016, her last working day. As her last working day fell on a Saturday, the 21 day calculation commences on the next business day, being Monday 1 February 2016. As she filed her application on 26 February 2016, the application was filed 4 days outside the statutory time period permitted by s.366(1)(a). I now turn to consider whether there were any exceptional circumstances which would satisfy me that the Commission’s discretion should be exercised to allow this application to be filed out of time.

Matters to be taken into account pursuant to s.366(2)

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

(a) The reason for the delay

[34] The Applicant submits that if I regard the application as being lodged out of time, there are exceptional circumstances giving rise to the delay. The Applicant states that the dynamics of the relationship between herself and the Respondent were ‘traumatic and emotionally charged’. 39 The Applicant submits that she was subjected to sexual harassment by Mr Higgins, a director of the Respondent, and she ‘found herself in a difficult working environment’.40 She submits that the complaint of this behaviour was the substantial reason for her dismissal.

[35] The Applicant also submits she was suffering from mental health issues 41 ‘which were exacerbated by the circumstances the subject of the Application’.42 At the Hearing the Applicant confirmed that her application did not provide any evidence of mental illness as a reason for the delay.43

[36] The Applicant’s application further noted that she did not have written advice relating to her termination until ‘9 January 2016[sic]’, she was advised by a team member at ‘Fair Work’ that she was unable to make an application as she had less than six months service with the Respondent, and the Applicant pursued other jurisdictions to make her application. 44 At the Hearing the Applicant conceded that she was able to obtain legal advice, but not legal representation within the time required to lodge the application.45

[37] The Respondent’s submissions in response to the reason for the delay are as follows:

• ‘there is no evidence that the Applicant was provided with erroneous advice by any agency or legal representative’; 46



• the Applicant was ‘simply not aware of either the time limit to file her claim and/or unaware that she could make a general protections application;’ 47



• the Applicant has not provided further information and/or evidence in relation to her mental health issues; 48



• the Applicant ‘engaged in a number of dealings in relation to her dismissal in the days and weeks following her dismissal’ 49 including filing complaints with the Anti-Discrimination Board and the Human Rights Commission (AHRC);



• the Applicant was working at ‘Barrel 58 Restaurant’ and is running her own events management company; 50



• the Applicant was ‘well enough to complete the general protections application on or prior to 19 February 2016’; 51



• the Applicant’s application does not clearly articulate the reasons as to why she filed her application out of time and further, the Applicant does not have medical evidence as to why the application was filed out of time; 52



• ‘there are no circumstances, either separately, or taken as a whole that can be regarded as ‘exceptional’ for the purposes of s.394(3) [sic] of the Act’. 53

[38] For this consideration there must be an acceptable reason for the delay 54 and this must be for the whole period that the application was delayed.55 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

Applicant’s submission regarding section 394(3)(b)

[39] The Applicant made submissions in her Outline of Arguments: Extension of time under a heading “When the person first became aware of the dismissal after it had taken effect”. 56 This is a matter to be taken into account under s.394(3)(b) in relation to unfair dismissal applications. This is not a matter that is taken into account under s.366(2) in relation to general protections applications. I do not need to take the Applicant’s submissions in relation to this point into account.

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

[40] The Applicant makes a number of submissions as to what she perceives as action taken by her to dispute the dismissal. These include:

• After she received her payment on 5 February 2016 (for the pay period 21/01/2016-03/02/2016 57), she realised she ‘was not going to get paid beyond that’;58



• She decided to seek external assistance for her mental health; 59



• She conducted research to deduce what ‘free or affordable options were available’ 60 to assist her as she believed her termination was unlawful;



• On 5 February 2016, she contacted the Fair Work Commission, visited the Women’s Cottage at Richmond to speak to a counsellor, visited the Windsor Police Station and called the Hawkesbury Nepean Community Legal Centre; 61



• She commenced applications with both the AHRC and the Anti-Discrimination board; 62



• The Applicant submits she ‘went to great lengths to contest her dismissal’. 63

[41] The Respondent submits that ‘the Applicant took steps to dispute the dismissal by making other claims and contacting other bodies… [and] also threatened legal action in very general terms in an email to Ms Higgins dated 9 February 2016’. 64

[42] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 65

[43] I accept that the above steps taken by the Applicant to dispute the dismissal took place. This weighs in favour of finding that there are exceptional circumstances.

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

[44] The Applicant submits that the Respondent has suffered no prejudice from the delay because ‘even on the Respondent’s best case the Application was lodged only 2 days late’. 66

[45] The Respondent submits that it would incur the additional costs and administrative burden of defending the application, should an extension of time be granted. 67

[46] Whilst I note the Respondent’s submissions, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[47] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 68 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.69 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[48] The Applicant submits that she will ‘effectively be rendered without recourse in either of the FWC, AHRC or Anti-Discrimination Board, having essentially ‘hamstrung’ herself in the event that the Application is not permitted to proceed’. 70 It is further submitted that the matter does not otherwise raise issues of fairness as between the Applicant and other persons in a like position.

[49] The Respondent submits that this is not a relevant consideration in this matter, given that the Respondent is a small business.

[50] I have considered the Applicant’s and the Respondent’s submissions and I find this criterion to be neutral.

Conclusion

[51] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[52] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 71

[53] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[54] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr John Laxon of Laxon Lex Lawyers, for the Applicant;

Ms Helen Carter of PCC Lawyers, for the Respondent.

Hearing details:

2016

Melbourne, Sydney (by Video Link).

30 August.

 1   Confirmed by email from Laxon Lex Lawyers to the Commission dated 5 September 2016.

 2   General Protections Application, lodged 26 February 2016, p. 4.

 3   Employer Response to General Protections Application, lodged 11 March 2016, p. 3.

 4   Ibid.

 5   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1, Transcript, 30 August 2016, PNs 753, 766.

 6   [2011] FWAFB 975.

 7   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.1.

 8   Transcript, 30 August 2016, PN 138.

 9   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.1.

 10   Ibid p.1.

 11   Transcript, 30 August 2016, PNs 821-822, 653-660.

 12   Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [43], Annexure B.

 13   Transcript, 30 August 2016, PN 105.

 14   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.2.

 15   Ibid p.2.

 16   p.133.

 17   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.2.

 18   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1.

 19   Ibid p.6.

 20   Transcript, 30 August 2016, PN 816.

 21   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1.

 22   Ibid p.2.

 23   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].

 24 Transcript, 30 August 2016, PN 466; Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [32].

 25   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.1.; Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1; Transcript, 30 August 2016, PN 758.

 26   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.4.; Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1.

 27   Transcript, 30 August 2016, PNs 530-533; Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [43]; Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.6.

 28   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.1; Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016, Annexure A.

 29   Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [43], Annexure B.

 30   Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [45]; Transcript, 30 August 2016, PNs 783-785, 787.

 31   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.4; Transcript, 30 August 2016, PN 63.

 32   Transcript, 30 August 2016, PN 779.

 33   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.2.

 34   Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 Annexure C.

 35 (1994) 122 ALR 333, 355.

 36   [2015] FWC 1312.

 37 Ibid [44].

 38   AE404729.

 39   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.3.

 40   Ibid p.4.

 41   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.4.; Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [50]-[53].

 42   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.4.

 43   Transcript, 30 August 2016, PN 177.

 44   General Protections Application, lodged 26 February 2016, p. 4.

 45   Transcript, 30 August 2016, PNs 198-199.

 46   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, pp.9-10.

 47   Ibid p.10.

 48   Ibid.

 49   Ibid pp.10-11.

 50   Ibid p.11.

 51   Ibid.

 52   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, pp.7-8; Transcript, 30 August 2016, PNs 807-808.

 53   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.8.

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

 55   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

 56   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.4.

 57   Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016, Annexure A.

 58 Exhibit A1, Affidavit of Danielle Smith, dated 1 August 2016 [57].

 59 Ibid [58].

 60   Ibid.

 61   Ibid [59]-[62].

 62   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.5.

 63   Ibid.

 64   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, p.12.

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

 66   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.5.

 67   Respondent’s Outline of argument: Extension of time, lodged 1 August 2016, pp.3-4.

 68   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 69   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 70   Applicant’s Outline of argument: Extension of time, lodged 1 August 2016, Annexure 1 p.5.

 71   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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