David Nava v JFVR Enterprises Pty Ltd
[2024] FWC 1590
•18 JUNE 2024
| [2024] FWC 1590 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Nava
v
JFVR Enterprises Pty Ltd
(U2024/4558)
| COMMISSIONER PERICA | MELBOURNE, 18 JUNE 2024 |
Application for an unfair dismissal remedy
Mr. David Nava (“Nava”) has made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging he had been unfairly dismissed from his employment with JFVR Enterprises Pty Ltd (the Respondent).
Procedural history
The application may have been made out of time. To deal with this threshold issue, I issued directions on 15 May 2024 for the filing of material.
The matter was heard by way of a determinative conference on 11 June 2024 through Microsoft Teams. Nava appeared, represented himself and gave sworn evidence. The Respondent was represented by Mr. Vincent Rewcastle (“Rewcastle”), Director of the Respondent, who also gave sworn evidence.
Towards the end of the Determinative Conference before closing submissions, Nava disconnected from the Microsoft Teams meeting. My associate tried on multiple occasions to contact him without success. As a result of this disconnection, I issued further directions inviting final submissions. No final submissions were filed.
For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.
When must an application for an order granting a remedy be made?
Section 394(2) provides that such an application must be made:
(a) within 21 days after the dismissal took effect: or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
A Full Bench has stated in relation to a general protections' application but equally applicable here, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”[1]
Submissions on the date the dismissal took effect.
There is a contest on the evidence on the date the dismissal took effect.
Nava submits the dismissal took effect when he was informed “third-hand over the phone that [his] Workcover claim had expired” on 28 March 2024.[2] His submissions of fact included:[3]
“It took a further 6 days for WorkCover communications file to be sent to me with written confirmation of my dismissal.
I only found out [about my dismissal] after it had taken place, at no time up until the sending of this e-mail have I received form of termination paperwork”
The Respondent argues dismissal took effect five months earlier on 31 October 2023. In his written submissions, Rewcastle of the Respondent made the following submissions of fact:[4]
“[Nava] was dismissed on Tuesday 31 October 2023 at 8am. Location Happy Dayz Café, Loganholme. We briefly spoke and I ordered coffee for Mr. Nava and myself. We then went and sat down. After seeing the letter, he commented “Give me the “f&*king letter” walked to his Ute and drove off… He was dismissed because of poor performance and customers complaining of his demeanour. After his dismissal he took himself to the emergency room at 9.29AM.”
Nava’s evidence on date of dismissal
In his oral evidence, Nava agreed that he did attend a meeting on 31 October 2023 at the Happy Dayz Cafe. His account was he informed Rewcastle of his hand injury which he says occurred at work from a fall from a ladder on 18 October 2023. He was then advised by Rewcastle to seek medical attention. Nava left the meeting and went to see the doctor “between 9.00 AM to 9.30 at the latest”. It subsequently transpired that he had a fracture of the fifth metacarpal in his right hand which was treated by “immobilization and plaster”.[5]
There is no evidence of any communication between Nava and the Respondent in relation to the injury or otherwise between 18 October, when he alleges the injury occurred, and the 31 October meeting.
When asked whether there was any communication between himself and the Respondent after the 31 October meeting, Nava noted that there had been very limited communication between himself and Rewcastle. Nava gave evidence that he contacted Rewcastle by text that “he wanted his tools back”. According to Nava, this request was motivated by his daughter’s partner needing the tools for a job. He gave evidence that “things got heated between me and Mr. Rewcastle, and I was a party to that Commissioner. For my mental health I asked for Mr. Rewcastle to stop contacting me until the injury was done”.
From 31 October 2023 until 28 March 2024 Nava was in receipt of WorkCover payments. His evidence was he only became aware his employment had been terminated when he was informed by a WorkCover officer on 28 March 2024. Nava’s evidence is that was the first time he became aware he had been dismissed.
In his evidence, Nava conceded that his WorkCover claim was subsequently revoked on the basis that the injury did not occur at work. This decision is
“in the process of being appealed”.[6]
Evidence of Rewcastle on the date of dismissal
In his oral evidence. Rewcastle stated Nava had been dismissed at the meeting on 31 October 2023. The meeting had been organised through a Google Calendar invitation. The HappyDayz Cafe in Loganholme was chosen as a venue as it was closer to where Nava was living, and Rewcastle had a job in Brisbane that day.
Rewcastle’s evidence of what transpired at that meeting was that “they were standing up and he ordered a coffee for himself and Nava. I had my iPad and a termination letter in an envelope. I said, “do you know why you are here today?”. I asked him for the work iPad. Rewcastle was just about to hand Nava the envelope containing the termination letter. Nava stood up said “give me the fucking letter”. Nava did not take the envelope and started walking to his van and drove off without taking the envelope with the termination letter inside.
The Respondent tendered a text exchange which Rewcastle said occurred between him and Nava in the afternoon of 31 October 2023. The text exchange has the time stamp of 1:23 PM and 1:24 PM:[7]
Rewcastle
Hi Dave, I’ll need to grab the iPad off you. Also, I have to give you your tools.
Rewcastle
Hi Dave, could you please call me back so I can arrange to give you your tools and collect the iPad. Also, so I can give you the paperwork
Nava
Hi Vin, as previews (sic) organized the iPad was left in the van when I drooped to your place 18/10
Rewcastle
Thank you I didn’t see it in there I will check. I can drop your tools to you also.
Nava
Please stop harassing me and cease all contact, bullying and ongoing intimidation immediately. Failure to do so will result in the police being contacted”
The Respondent also filed an e-mail from James Folwell, (who was also involved in the business of the Respondent) to Rewcastle dated Monday 30 October 2023 at 7:33 PM,[8] the night before the 31 October meeting (the Folwell E-mail). That e-mail states:
“Hi Vinnie,
Please find attached a Word version of the termination letter.
I have given it to you in Word so you can put the correct information in the letter in regard to leave entitlements and notice period (I suspect there will be no payment to be made due to negative leave entitlement.
I thought we don't recoup the money owed and count that as a payment in lieu of notice. Up to you, though. You'll have to do the calculation and work it out and make sure we at least meet the 1 week obligation of notice after factoring in the negative leave.
Dot Points:
· Thanks for coming to meet with me this morning.
· I need to speak with you regarding your employment with us.
· Whilst we have enjoyed your company and your flexibility to assist with a variety of tasks, it has become evident that the performance we need to get from you in a selling perspective that you were hired for isnt such that we will be able to retain you.
· We have probation periods for this reason so each party can assess if they want to be in it long term and I believe the best version of a future for you is not working in the kind of environment we provide.
· We have enjoyed having you on the team, and we value your attitude and flexibility, but after reviewing sales indicators, we don't believe that this job will be one where you can reach your potential and feel like you are the best version of yourself.
· In this envelope is the termination letter, which provides information regarding the end of your employment, notice period and calculations for leave and entitlements.
· We would certainly like to wish you well, and I would be happy to act as a reference for you as you seek alternate employment, as you do have good qualities that I can speak to and endorse you with.
I wouldn't try to learn the above or read it. Before the convo, just read it a few times, be confident, and you will surprise yourself at how well you can deliver it. It doesn't matter if it comes out in a different order”.
The Folwell e-mail attached a draft letter.[9] Rewcastle gave evidence this was a draft termination letter addressed to Nava. Rewcastle says this draft was in the same form as the letter he attempted to give to Nava. The only difference between the draft and the version that he attempted to give to Nava was under “2. Termination payment” which in the draft included the words “a. payment in lieu of notices; and b. any accrued, but untaken, annual leave entitlement” were not in the final version. The text of the Folwell E-mail makes it clear that a calculation of those amounts was required for the final letter.
Nava in his evidence suggested that he had heard Rewcastle typing while he was giving evidence. I took this to suggest the draft letter had just been produced by Rewcastle during the conference. In his evidence Rewcastle said he was typing to recover the termination letter from his e-mail inbox.
Rewcastle subsequently produced a copy of what he says was the actual letter he attempted to give to Nava. The envelope has the words “David Nava” handwritten in pen on the outside.
The alleged final termination letter is dated 30 October 2023. It is creased as it would be had it been in an envelope. The first paragraph of that letter reads, “The purpose of this letter is to confirm the decision by [the Respondent] to terminate your employment with immediate effect. Unfortunately, this means your last day of work with us will be today Tuesday 31 October 2023”. This version of the letter is signed by Rewcastle.
This letter is in the same form as the draft which is attached to the Folwell E-mail but in place of the words “payment in lieu of notice and any accrued untaken annual leave entitlement”, a new paragraph substituted:
“You currently have 23.38 hours of leave entitlement before the current time you had for annual leave. The leave you took is equal to 37.5 hours. We have no intention of asking for any monies to be paid back and we sincerely wish you well”
The final version of the letter was put into evidence after Nava had dropped out of the Microsoft Teams meeting. My associate attempted to contact him to rejoin without success. I subsequently made a specific direction to Nava to make submissions in relation to this final letter and no such submissions were forthcoming.
In his evidence, Nava denies ever seeing the termination letter.
Findings on date of dismissal
The account given by Rewcastle falls short of him expressly telling Nava that he was dismissed. Nava got up and left the meeting after Rewcastle had said to him “Do you know why we are here today”. Rewcastle’s evidence was that he had the iPad and the envelope in his hand as he uttered those words and then sat down. Nava left without taking the termination letter. The version of the meeting described by Rewcastle and documentary evidence filed in the proceeding supports an inference that Nava knew that he was being dismissed on 31 October 2023.
Rewcastle received the Folwell E-mail on the evening of 30 October. It contained a draft of the termination letter and a script that Rewcastle could use when terminating the employment of Nava. It supports an inference Rewcastle was prepared for a termination meeting to occur on the following day.
The envelope and the termination letter dated 30 October (which gives 31 October as the termination date) is consistent with the 31 October meeting being a termination meeting.
The evidence of Rewcastle falls short of him actually telling Nava that “you are dismissed” at the 31 October 2023 meeting. I find, as Nava had been told, “Do you know why we are here” and he observed Rewcastle was holding an envelope, it was obvious why the meeting had been convened. Rewcastle’s account of Nava’s conduct in leaving before he could have the conversation and hand him the termination letter is consistent with Nava understanding and seeking to avoid being terminated. The inference is that Nava understood his employment was being terminated at that meeting. That inference is supported by the text exchanges that occurred later that day.
The text messages that occurred after that meeting were more consistent with Nava being aware that his employment had been terminated rather than an exchange about Nava’s injured hand. The text by Rewcastle that “also so I can give you the paperwork” is consistent with Nava leaving without taking the termination letter which supports Rewcastle’s version of events.
I put to Nava that his request for his tools back on 31 October was not consistent with his employment continuing after the meeting. He sought to explain this on the basis that his daughters partner needed his tools to do a job. The 31 October meeting occurred at 8:00 AM. Nava was at the hospital at 9:30 AM to have his injured hand treated. Nava then asked for his tools by text at 1:24 PM that day. The request for his tools so soon after the meeting is consistent with an understanding that is employment had been terminated.
According to the evidence of Nava on the 31 October meeting, Rewcastle had done nothing more than tell Nava to go and see a doctor about his injured hand. Following that meeting, Rewcastle sent three bland text messages concerning the return of the work iPad, his tools and “the paperwork”.
If the 31 October meeting had been nothing more than a request by Rewcastle that Nava go and see a doctor, followed by three bland text messages that afternoon, it is difficult to understand why Nava would reach the point (within hours of the hand injury meeting) where he found it necessary to send a text to Rewcastle to “Please stop harassing me and cease all contact, bullying and ongoing intimidation immediately. Failure to do so will result in the police being contacted”.
This series of texts is more consistent with the employment relationship being over rather than continuing. It is unusual for an employee who understands his contact of employment is ongoing to threaten to call the police on his employer after three bland text messages.
I therefore find that Nava knew that his employment had been terminated at the meeting on 31 October 2023 and that his termination was on that date.
As I have found the termination occurred on 31 October 2023, under s 394(2)(a) Nava was required to file his application within 21 days after the dismissal took effect. He was required to file his application on or before 21 November 2023. He filed his application on 21 April 2024. His application was 152 days late.
Extension of time
Under section 394(3), the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Nava first became aware of the dismissal after it had taken effect; and
(c) any action taken by Nava 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 Applicant and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[10] I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 November 2023. The delay is the period commencing immediately after that time until 9:42 AM on 21 April 2024. Circumstances arising prior to that delay may be relevant to the reason for the delay.[11]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[12]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[13]
Nava’s submissions on the reasons
Nava’s submissions on reasons are predicated on the assumption that he was not aware he had been terminated until 28 March 2024. As I have found his employment was terminated on 31 October, his reasons for delay must explain the why his application was 152 days late.
The reasons he gives for the delay are as follows:
“1. Only found out 3rd hand over phone on 29/3/24 from a WorkCover officer once my claim had expired.
2. Took a further 6 days for WorkCover communications file to be sent to me with written confirmation of my dismissal.
3. I only found out of dismissal after it had taken place, at no time up until the sending of this email have I received any form of termination paperwork.
4. Fwc online lodgement service was down for a period of approximately 5 days including the days leading up to and days after the 21 days from said date of termination.
5. Contacting the employer was unable to be made.
employer had previously informed WorkCover that they felt intimidated by a previous attempt by myself to contact them.
6. Employer has been dishonest regarding said termination with correspondence to WorkCover.”
No knowledge of dismissal until 28 March 2024
For the reasons I have explained above, although he was not expressly told he was terminated on 31 October 2023, based on all the evidence including his subsequent text messages I have found that Nava was aware that his employment had been terminated that day.
If I am wrong that he was aware of his termination on 31 October 2023, that could provide a reason for the delay up to the date he was expressly informed of his dismissal by the WorkCover officer on 28 March 2024.
Nava’s problems with lodging through the Online Lodgment Service (OLS)
Nava’s submissions on reasons for delay include that the “FWC online lodgement service was down for approximately five days”. The Commission made enquiries of its Data and Digital Services Team (“DDST”) of the Commission. The result of those enquiries were put to Nava and formed part of the Digital Court Book. The following is a summary of the response of the DDST which was received into evidence.
· [Nava’s] OLS account was created on 11 April 2024. Between 11-21 April there were 417 applications lodged via the OLS. There is no record of any issues with availability on the weekend of 12 to 13 April 2024 or over the timeframe 11 April to 21 April 2024.
· ICT undertook maintenance between 12-13 April which may have had a temporary impact on the OLS. However, if the system was under maintenance the user would likely not have been able to log in.
· There is a known bug in the system that may stop some users from progressing after uploading documents. There have been reported instances of users getting stuck after uploading documents and progressing to the final page of the OLS, the Summary page. This is usually triggered by a user uploading documents to the OLS and progressing to the next page while these are still being uploaded.
· The description you have provided appears similar to the bug. It is linked to an issue with attachments not being uploaded correctly. Users can either receive an error that takes them back to their ‘drafts’ page, or it can get stuck with a popup box.
· The DDST has searched for any reported issues with the OLS in their ticket management system, and there are no records of any tickets logged relating to your user account.
Nava responded to this explanation as follows:
“When hitting submit application button, the system would automatically revert back to the application as being saved but not submitted.
Being of the opinion it was a system glitch, I left the application overnight on the first occasion it failed then tried again late next day l, again it failed however it was outside of telephone contact hours to seek further guidance. I then tried again the next morning and it failed again, so I called the contact centre number and waited on hold for an extended period of time before speaking to a customer service officer who informed me of the system being down and doing what I had explained to them for a few days now.
I was in camping in rural Victoria (hanging rock region) at the time and didn’t have access to printer to do immediately as well as waiting on funds to clear (3 days) into my account for fuel to drive to town to print and send off, however I kept trying online lodging in meantime and it was accepted on the 2nd day after that”
On 15 April 2024, Nava had a conversation with an employee at the help desk of the Commission. A recording of that exchange was played at the determinative conference, having received consent from the Applicant to use the recording in the determinative conference, and admitted into evidence. In that recording, Nava explained the ‘glitch” he has described when an application included uploading documents. The Commission employee explained there had been a problem with applications which include uploading documents and suggested to Nava that he “download the form and e-mail it to the Commission”, to which Nava responded “Okay, I will do that then”.
In his evidence, Nava admitted he did not download the form because he did not know how to use his phone to download and to e-mail it. He was camping in country Victoria and therefore did not have access to a printer. He therefore kept trying the method that had failed him which eventually worked, six days later.
The fact that Nava was camping in Country Victoria and was less than proficient on downloading and editing forms on a mobile phone cannot be regarded as exceptional circumstances. From 15 April 2024, he was aware that there was an alternative method of filing which he did not use.
I agree with the view expressed by Deputy President Colman in McBride that “lodging an unfair dismissal application [is] a process which involves the completion of a very simple form in any one of a variety of simple ways.”[14]
Even if I accept that he did not become aware of his termination until 28 March 2024, and that he was delayed in filing the application by the “glitch” in the OLS. On 15 April 2024, Nava was informed of a method of filing by downloading the form and e-mailing it to the Commission. The further delay caused by his failure to utilise the alternative method cannot amount to a reason to extend time. The fact that he had limited proficiency on the use of his phone and he had decided to go camping in country Victoria are routine rather than exceptional circumstances.
Nava’s allegation he was too intimidated and unable to contact the Respondent
In his oral evidence, Nava did not seek to explain why he felt “intimidated by his employer” or why “contacting the employer was unable to be made”. The only evidence before me of the alleged “intimidation” is the three text messages which were sent to Nava after the meeting on 31 October 2023. The evidence before me on “intimidation” (such as it is) is insufficient to found a reason for delay.
Dishonesty of his employer on termination with Workcover
The alleged dishonesty of the employer “regarding the termination with correspondence to WorkCover” cannot provide a reason for delay. I have made a finding on the date of dismissal on the evidence before me.
When did Nava first become aware of the dismissal after it had taken effect?
I have found Nava was aware he was dismissed on the day it occurred on 31 October 2023.
In the alternative, as there is no direct evidence Nava was ever expressly told his employment was terminated on the date of the termination, then it is possible that he did not become aware of his termination until after he was informed by a Workcover Officer on 28 March 2024.
What action was taken by Nava to dispute the dismissal?
It was not contested that Nava took no action to dispute his dismissal before filing the application on 12 April 2024.
What is the prejudice to the employer (including prejudice caused by the delay)?
Rewcastle of the Respondent could not identify any prejudice by reason of the 152-day delay.
What are the merits of the application?
Rewcastle in his evidence stated that Nava had started in sales for the first five weeks but in that time, he only had achieved three “go-aheads out of multiple quotes”. Rewcastle explained Nava was then moved to installations. Rewcastle gave evidence he also had received complaints from customers about Nava both as to the quality of his work and his demeanour. He also gave evidence that Nava was criticising the owners of the Respondent to customers. As a result of this he “dismissed Mr. Nava under the contract during his probation period legally”.
Nava denies all of this. He gave evidence that he was dismissed “because of his work injury”, and that “he did not have any counselling or warning letters. I was making sales. I assumed everything was good”. His evidence was he was doing both installs and sales all the way along. He gave an explanation that he was not given a free reign in sales and was not given a fair chance to reach his potential.
Consideration of the merits as a factor
From the very limited evidence I have heard on the merits of the application, it seems
Nava had not been formally counselled or disciplined. Rewcastle gave evidence that he had discussed Nava’s performance in sales with him on an informal basis. There is also a contest as to the number of sales Nava achieved and the reasons why he was not making an adequate number of sales. There is no evidence that issues relating to demeanour or quality of installation work were put to him. Likewise, the issue of whether his alleged work injury could have formed a part of the reason for his termination is not adequately explained on the evidence I have before me.
It is evident the merits of the application turn on contested points of fact. It is not possible to make a merit assessment in this case without a full hearing where the evidence may be comprehensively heard and weighed. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s 366(2)(d)”[15] and the same applies to s 394(3)(e).
In the circumstances, I find it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
No substantial submission have been made by either party in relation to this factor. I find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
For the reasons I have expressed above, I find the following in relation to the factors I must take into account under s 394(3):
Reason for the delay [s 394(3)(a)]: I have found on the evidence Nava was aware he was dismissed on 31 October 2023. If he was aware of his dismissal on that date Nava gives no reason for the delay in filing his application between 31 October 2023 up until the time he attempted to lodge his application in April 2024.
Even if he was first aware of his termination on 28 March 2024, the reasons he gives for the late filing relating to a “glitch” in the OLS do not provide an adequate explanation for the delay in filing after he was informed of an alternative method of filing on 15 April. It took him another six days to file the application. The fact that he chose to camp in Country Victoria and was less than proficient on downloading documents on his mobile phone are routine rather than exceptional circumstances.
This counts against an extension of time being granted.
The Applicant first became aware of the dismissal after it had taken effect [s 394(3)(b)]: I consider on the evidence before me Nava was aware his employment had been terminated on 31 October 2024. However, he was not expressly told his employment was terminated on that date. In the alternative, it could be he first became aware of the dismissal on 28 March 2024. Applying the more generous date, this factor is in favour of an extension being granted.
Action to dispute the dismissal [s 394(3)(c)]: The Applicant took no steps to dispute his dismissal before his application was lodged. This counts against an extension of rime being granted.
Prejudice against the Respondent because of the delay [s 394(3)(d)]: The Respondent does not claim any prejudice caused by delay in filing the application. This factor is a neutral consideration to whether I should grant an extension of time.
Merits of the Application [s 394(3)(e)]: On the basis of the written submissions and limited oral evidence given at the determinative conference, I cannot make a merit assessment of this application. This factor is a neutral consideration to whether I should grant an extension of time.
Fairness between the Applicant and other persons in a similar position [s 394(3)(f)]: No submissions were made on fairness arising between the Applicant and other persons in a similar position. This factor is therefore neutral to an assessment of whether I should grant an extension of time.
I therefore conclude the reasons given for the delay under s 394(3)(a) and the lack of action by Nava to dispute the dismissal under s 394(3)(c) count against an extension of time being granted. If it is the case he first became aware that the dismissal took effect on 28 March 2024 under s 394(3)(b) that counts in favour of an extension of time being granted. The factors under s 394 (d), (e) and (f) are neutral. Therefore, on balance, and taking all the factors under s 394(3) into account, I cannot be satisfied there are exceptional circumstances.
As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. The Applicant’s unfair dismissal application is dismissed.[16]
COMMISSIONER
Appearances:
David Nava, the Applicant, for himself
Vincent Rewcastle for the Respondent
Hearing details:
11 June 2024
Microsoft Teams
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Digital Court Book (DCB) at p.4.
[3] Ibid.
[4] Ibid at p.75.
[5] Ibid at p.70 is the The Work Capacity Certificate dated 31 October 2023.
[6] The Communications Report of Workcover Queensland in relation to the injury is at DCB pp.5 to 48, the 28 March reasons for the decision to revoke WorkCover payments by the Review Unit of the Workers Compensation Regulatory Services is at DCB pp. 56 to 64.
[7] DCB at p.71.
[8] Exhibit R1.
[9] Exhibit R2.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[11] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[13] Ibid [40].
[14] McBride v. J.A Kreiger Forestry Services [2021] FWC 6284, [5].
[15] Nulty [2011] FWAFB 975, [36].
[16] PR776153.
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