Daryl Mark Plos v Almondco Australia Limited
[2023] FWC 953
•21 APRIL 2023
| [2023] FWC 953 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daryl Mark Plos
v
Almondco Australia Limited
(U2023/920)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 21 APRIL 2023 |
Application for an unfair dismissal remedy – application filed 228 days outside of statutory 21 day time limit – no exceptional circumstances – application dismissed.
Introduction
On 6 February 2023, Daryl Mark Plos (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Almondco Australia Limited (Respondent).
There is a dispute between the parties as to whether the Applicant was “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act). The Respondent says that the Applicant voluntarily resigned from his employment on 2 June 2022 (with effect that same day),[1] whilst the Applicant contends that he “felt forced to resign” on 2 June 2022.[2]
In Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[3] the Full Bench stated as follows:
“[15] The question of whether an application for an unfair dismissal remedy is made outside the required time, is not strictly a jurisdictional objection. Quite simply, an unfair dismissal application made outside the time required in s.394(2) is not validly made, unless and until, a further period has been granted. … Before any of the other jurisdictional objections can be considered, it is necessary that the question of the date the Appellant’s dismissal took effect (if the Appellant was dismissed) [be determined].”[4]
Both of the parties in these proceedings assert that the Applicant’s employment with the Respondent came to an end on 2 June 2022. For the purposes of this decision, and s.394(2)(a) of the Act, I work on the assumption that the Applicant was dismissed, and that such dismissal took effect on 2 June 2022.
An unfair dismissal application must be made within 21 days after a dismissal occurs, or in such further time as the Commission may allow. The 21 day period prescribed in s.394(2)(a) of the Act does not include the day on which a dismissal took effect. This means that the Applicant should have filed his Application with the Commission by 23 June 2022 (to be within the 21 day statutory time period). It follows that the Applicant has filed his Application 228 days late, or 249 days after his dismissal took effect. Given that the Application in this matter has been filed outside of the statutory 21 day period, it is necessary that I determine whether to extend the time for the filing of the Application.
At the hearing, the Applicant appeared for himself, and Ms Emily Haar, Partner, Piper Alderman lawyers, appeared with permission for the Respondent.[5]
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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.
[14]Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) is not an exceptional circumstance…”[6]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[7]
In Mohammed Ayub v NSW Trains[8], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[9]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[10] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[11] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[12]
The Applicant’s reasons for delay are set out in his Form F2,[13] an attachment to an email to the Chambers of Catanzariti VP (dated 10 March 2023), his submissions dated 22 March 2023, and in oral submissions he made at the Hearing on 12 April 2023. In summary, the Applicant submits that he was unable to file his Application within time because he was unaware of the 21 day statutory time limit, he was seeking (or had difficulties seeking or obtaining) legal advice, and/or he was impaired (or not thinking logically or straight) as he was suffering from a lack of sleep, depression and anxiety.[14] In support of his reasons for delay, the Applicant relies upon a medical certificate from Dr David Richards dated 7 October 2022.
The Respondent (relevantly) made the following submissions in respect of the Applicant’s reasons for delay:
“21. The Applicant has stated that he was not in a position to be aware of the statutory timeframe required to submit an application.
22. Moreover, the Applicant has submitted that he was not “emotionally or psychologically fit to fully explore all legal avenues available”, so was not aware or capable of knowing about the 21 day statutory deadline.
23. In Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 it was stated that mere ignorance of the statutory time limit is not an exceptional circumstance. The Full Bench noted at [14]:
23.1 that it would be common for dismissed employees to be unaware of the time limits imposed in relation to making applications for unfair dismissal; and
23.2 the Parliament’s choice to condition the discretion to extend time on the existence of “exceptional circumstances” is assumed to have been on the basis that an employee who is aggrieved by dismissal is expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
24. In Khaled Odat v Rasier Pacific Pty Ltd [2021] FWC 4389, the Commission stated at [23] that there is:
“nothing ‘out of the ordinary course, unusual, special, or uncommon’ about an applicant having to make his own enquiries as to the Commission’s processes and timeframes for filing”.
25. The Applicant’s lack of knowledge regarding the statutory time limits is clearly not a sufficient reason for the delay in filing. The Applicant chose to investigate and pursue workers’ compensation matters, but not investigate his unfair dismissal options.
26. The Respondent accepts and does not intend to diminish the existence of the Applicant’s stated mental health condition(s). However, the Fair Work Commission has often found that this will often not meet the requisite standard of “exceptional circumstances.”
27. The Commission stated in Caleb Wickham v Planted Cootamundra [2020] FWC 4755 that “there must be evidence of some link between the applicant’s state of mental health and the asserted incapacity to make the unfair dismissal application”.
28. In that case, the Fair Work Commission did not grant a 34 day extension where the applicant had been suffering from anxiety and depression, his father was ill, and he was involved in other legal proceedings. While sympathetic towards his mental state, the Commission concluded that there was nothing indicating that he was completely incapable of making an application at some earlier time.
29. The Respondent submits, that on the limited evidence that has been provided by the
Applicant, there is nothing within the letter from Dr David Richards or any other document in its possession that indicates the Applicant would have been completely incapable of making an application at any earlier date.
30. The Respondent submits that there is no link between the Applicant’s state of mind and the asserted incapacity to make an application for unfair dismissal for over 7 months.
31. In Joseph Costelloe v Origin Energy Ltd T/A Origin Energy [2017] FWC 3946, the Fair Work Commission considered an unfair dismissal application that was filed 11 months late, where the Applicant had sought the advice of lawyers, lodged a workers compensation claim, and was struggling with psychological illness. In addition, the Applicant in that case also had caring responsibilities for his wife pre and post the birth of their child, an ill mother, and financial difficulties. The Fair Work Commission in that case still decided that these matters did not adequately explain the significant delay in making the application.
32. In Costelloe, the Fair Work Commission noted in particular that:
32.1 While the Applicant had been diagnosed with anxiety and depression, and required on-going treatment, there was no evidence provided by his treating doctors that he was not capable of pursuing an application for unfair dismissal during the 11 month period in which he failed to do so;
32.2 While his workers’ compensation claims took up a degree of time, the pursual of such claims by him does not explain his failure to make an application for unfair dismissal;
32.3 There was no evidence to suggest that he was not able to research, understand or complete an application to the Commission with respect to unfair dismissal within the prescribed period, or within the 11 months;
32.4 Similarly, the time spent by the Applicant in filing and working on his workers’ compensation claims indicated that he did have the time and capacity to investigate his options regarding an unfair dismissal claim; and
32.5 Finally, the Applicant had consulted numerous law firms with respect to his workers’ compensation claim but did not indicate that he asked any of them about the circumstances of the cessation of his employment and if there was any claim he could make in that respect.
33. The Respondent submits that the circumstances in Costelloe are analogous to the present case. Although the Applicant has been diagnosed with anxiety and depression, this would not have entirely prevented him from investigating his options regarding potential claims.
34. Moreover, the Applicant still had the capacity to pursue a number of workers compensation claims, indicating that he had the facilities at some point within the 7 month period after his employment ended to commence legal action. The Applicant sought legal advice following his resignation, and still did not commence his claim until 7 months later.
35. In Shane Dwight v Arrow Building Group [2022] FWC 3254 the Applicant filed his application 18 days outside the 21 day period. The Applicant gave evidence that he suffered from medically diagnosed anxiety and depression, and that his dismissal was an emotional process that impacted on his ability to file his unfair dismissal application within the 21 day statutory time period.
36. The Applicant in that case also submitted that his pursual of outstanding leave entitlements took precedence over the filing of an unfair dismissal application, and that he lacked knowledge of the unfair dismissal jurisdiction and process.
37. In that case, the Fair Work Commission found that:
37.1 The Applicant’s claimed ignorance of the unfair dismissal jurisdiction/process of the Commission is not an acceptable reason for the delay;
37.2 Once the Applicant had been informed by the Fair Work Ombudsman of the unfair dismissal application process, he still took several more days to file his application;
37.3 The limited medical evidence before the Commission did not indicate that the Applicant was, in the period immediately following his dismissal, debilitated to the point of being unable to prepare and file an application for an unfair dismissal remedy;
37.4 The mental health issues referred to by the Applicant did not prevent his pursuit of unpaid leave entitlements directly with the Respondent in the wake of his resignation, nor did they prevent him from contacting and seeking assistance from the Fair Work Ombudsman; and
37.5 This was a significant delay in filing the application, and the absence of an acceptable explanation for the filing delay or any part of the delay, weighed strongly against a conclusion that there were exceptional circumstances.
38. This case also provides guidance for the case before us. The Applicant had his first
consultation with Slater & Gordon regarding an unfair dismissal claim on 1 December 2022, and yet still did not make his application until 2 February 2022, more than two months later. However, he had also contacted Walsh & Blair many months before, where he chose not explore any options relating to the cessation of his employment.
39. There is also nothing to suggest that the Applicant’s mental health conditions were so debilitating that he was unable to make an application, or make enquiries, for an entire 228 days. Similarly, they did not prevent him from pursuing numerous workers’ compensation claims.”[15]
In Bianco Mamo, Deputy President Easton outlined issues associated with illness (including mental illness) and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
[25] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”[16]
(footnotes omitted)
I concur with and adopt the foregoing principles.[17]
Exceptional circumstances may be found to exist where an applicant has a medical or other incapacity (established by probative medical evidence) that prevents the applicant from filing an application within the 21 day time period and for the relevant period of the delay. [18] No such evidence has been provided by the Applicant in this case. In other words, the medical evidence that is relied upon by the Applicant does not explain or otherwise justify the lengthy delay in the filing of his Application.[19]
The Applicant’s other two reasons for delay, namely, being unaware of the 21 day statutory time limit, and seeking (or having difficulties seeking or obtaining) legal advice, are not acceptable reasons for the lengthy 228 day delay in filing his Application.
All in all, on the evidence before me, I find that that the Applicant’s reasons, for the 228 day delay in filing his Application, are unsatisfactory. The reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain his 228 day delay. I thus conclude that the Applicant’s reasons for delay are such that they weigh against any finding as to the existence of exceptional circumstances in this case.
Whether the Applicant become aware of the dismissal after it had taken effect[20]
The Applicant was aware of his dismissal (employment ending) on the day that it occurred (i.e. 2 June 2022). I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[21]
The Applicant did raise concerns as to his dismissal with the Respondent during the 21 day time period. In other words, it is apparent that the Applicant disputed his dismissal at the time he was dismissed (resigned), but still failed to file his Application within the 21 day statutory time period. I consider this criterion (in respect of the action taken by the Applicant to dispute his dismissal) to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Prejudice[22]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 228 day delay. I consider there to be significant prejudice to the Respondent in terms of its ability to meet and defend the Application if a 228 day extension of time is granted for the Applicant to file his Application. Whilst the existence of prejudice does not automatically weigh against a finding as to the existence of exceptional circumstances, in this case, I consider that the lengthy period of delay (228 days) is such that it does weigh against any finding as to the existence of exceptional circumstances.
Merits[23]
The Respondent says that the Applicant was not dismissed, but that he voluntarily resigned from his employment on 2 June 2022.[24]
The Applicant says that he felt forced to resign following the Respondent’s conduct towards him in the aftermath of a workplace incident.[25] He says that he had always presented to work with a good work ethic, had at all times been a loyal and faithful employee to the Respondent, and had never been warned or counselled about his performance or conduct. It is the Applicant’s position that he was dismissed without warning and absent a valid reason. In effecting the Applicant’s dismissal, or otherwise accepting his forced resignation, the Applicant submits that the Respondent has shown no respect to him, and afforded him no procedural fairness. Indeed, the Applicant considers that his dismissal arose because of poor management practices, and in an effort by the Respondent to protect another employee.[26]
The principles stated in Kyvelos v Champion Socks Pty Ltd[27] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[28]
In Kornicki v Telstra-Network Technology Group,[29] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. 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.”[30]
The merits of the Applicant’s case, by reference to the Respondent’s assertions, and the Applicant’s counter assertions were not tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application).[31]
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[32]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[33] Neither party made any relevant submissions as to this criterion. Accordingly, I consider this criterion to be a neutral consideration.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) two of the criteria, considered individually, point towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. two criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[34]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file his Application.[35] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Daryl Mark Plos (the Applicant), appeared for himself.
Ms Emily Haar, Partner, Piper Alderman lawyers, appeared with permission for the Respondent.
[1] Form F3, 10 March 2023, Item 3.2, [7]; Witness Statement of Brenton Woolston dated 29 March 2023, [27]-[31]; Respondent’s Submissions dated 29 March 2023, [41]-[49].
[2] Form F2, 2 February 2023, Items 1.4 and 1.5; Applicant’s Submissions dated 22 March 2023. Transcript, PN14 and PN27.
[3] [2022] FWCFB 234.
[4] Ibid, at [15].
[5] Transcript, PN5-PN10.
[6] [2011] FWAFB 975.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[8] [2016] FWCFB 5500.
[9] Section 394(3)(a) of the Act.
[10] [2021] FWC 3903.
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[12] Ibid, at [40].
[13] Form F2, 2 February 2023, Item 1.4; Applicant’s Submissions dated 22 March 2023.
[14] Transcript, PN31-PN39, PN49-PN53, and PN72-PN76.
[15] Respondent’s Submissions dated 29 March 2023, [21]-[39]. Transcript, PN59-PN70.
[16] [2021] FWC 3903, at ]19]-[25].
[17] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[18] Traie Hansen v Supported Options In Lifestyle And Access Services Ltd T/A Solas [2016] FWC 5907, at [45].
[19] See Medical Report from Dr David Richards, dated 7 October 2022.
[20] Section 394(3)(b) of the Act.
[21] Section 394(3)(c) of the Act.
[22] Section 394(3)(d) of the Act.
[23] Section 394(3)(e) of the Act.
[24] Form F3, 10 March 2023, Item 3.2, [7]; Witness Statement of Brenton Woolston dated 29 March 2023, [27]-[31]; Respondent’s Submissions dated 29 March 2023, [41]-[49].
[25] Form F2, Items 3.1 and 3.2.
[26] Ibid.
[27] (1995) 67 IR 298.
[28] Ibid, at 299 to 300.
[29] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[30] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[31] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[32] Section 394(3)(f) of the Act.
[33] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[34] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[35] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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