Diana Sburlati v Glad Security Pty Ltd

[2021] FWC 6487

[2021] FWC 6487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Diana Sburlati
v
Glad Security Pty Ltd
(C2021/5339)

DEPUTY PRESIDENT BOYCE SYDNEY, 13 DECEMBER 2021

Application to deal with contraventions involving dismissal

Introduction

[1] On 3 September 2021, Ms Diana Sburlati (Applicant) filed a Form F8 general protections involving dismissal application (Application) with the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Glad Security Pty Ltd (Respondent) in contravention of Part 3-1 of the Act, namely, for exercising a workplace right/s (s.340), and/or for taking a temporary absence due to an illness or injury (s.352).

[2] The Applicant was employed by the Respondent from 6 August 2018. By way of email dated 4 August 2021, the Applicant resigned from her employment with the Respondent “effective immediately”. Despite again reconfirming in writing her decision to resign (by way of further email on 5 August 2021), the Applicant says that she was forced to resign, and was therefore “dismissed” within the meaning of s.386(1)(b) of the Act.

[3] In the Respondent’s Form F8A response, filed on 14 September 2021, the Respondent raises two objections to the Application. Firstly, that the Applicant was not “dismissed”, i.e. the Applicant resigned voluntarily. Secondly, even if the Applicant was dismissed, her Application has been filed out of time (i.e. it has been filed more than the 21-days after the date of the Applicant’s dismissal), and there are no “exceptional circumstances” enlivening the Commission’s discretion to grant an extension of time. 1

[4] On 18 October 2021, directions were issued to the parties to file and serve evidence and submissions, and a hearing was conducted on 26 November 2021 to resolve the Respondent’s objections.

[5] The Respondent relied upon two witness statements:

(a) Witness Statement of Mr Andreas Sarikakis dated 26 October 2021; and

(b) Witness Statement of Ms Janet Catalano dated 26 October 2021.

[6] The Applicant relied upon her submissions dated 5 November 2021, and her supplementary submissions dated 24 November 2021.

[7] At the hearing, it became apparent that the most appropriate course was to determine whether or not the Applicant was dismissed by the Respondent. In this regard, if the Applicant was not dismissed, there would be no further need to determine the out of time objection. I consider this approach consistent with the comments of Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd 2, where his Honour states:

“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.” 3

Terms of Employment Contract

[8] The Applicant accepts that she was bound by a written contract of employment with the Respondent dated 19 August 2019 (Employment Contract). 4 Relevantly, clauses 2.7 to 2.9, and 4.1, of the Employment Contract, read:

“2.7. You acknowledge and understand that:

(i) The Glad Group provides services to its clients under fixed term contracts;

(ii) it is a normal feature of the Glad Group’s business, and the industry, that it wins and loses contracts to provide services;

(iii) you are being employed for the purposes of the Glad Entity servicing a contract with its client for the site detailed at Item 9 of Schedule 1 and which is for a fixed term;

(iv) your ongoing employment with the Company is dependent upon the continuation of the Glad Entity’s contract with its client;

(v) pursuant to clauses 2.7(iii) and (iv), you have no expectation of continuing employment with the Company if the Glad Entity loses its contract with its client;

(vi) if the Glad Entity loses its contract with its client your employment will be terminated, unless you are redeployed as detailed at paragraph 2.8 below;

(vii) in the circumstances, where your employment is terminated because of the matters in this clause you will not be entitled to any redundancy pay, pursuant to section 119 of the Fair Work Act 2009 (Cth) (“Act”), as the cessation of your employment will be due the ordinary and customary turnover of labour resulting from the Glad Entity losing its contract with its client; and

(viii) for the avoidance of doubt, in the circumstances detailed in this clause 2.7, you will be paid all other entitlements due and payable as calculated at the time of termination.

2.8. Notwithstanding clause 2.7 if the Glad Entity has lost its contract with its client, the Company will endeavour to find you future employment with the incoming contractor and or may offer you employment elsewhere within its business.

2.9. You also acknowledge and agree that:

(i) it is an inherent requirement of your position that the client of the Glad Group for whom your services are provided does not request you to be removed from your position;

(ii) if a client requests that you are removed from your position this means that you cannot continue in your position. If so, and subject to your performance and conduct the Company may discuss with you whether there are other suitable alternative positions available at the site or at another site. If there are such suitable alternative positions available, to effect this change, you must complete a transfer of site form or a change of on-site classification form, whichever is applicable.

(iii) if (i) above applies and there are no other suitable alternative positions available at the site or at another site, your employment will be terminated.

(iv) in the circumstances, where your employment is terminated because of the matters in this clause you will not be entitled to any redundancy pay, pursuant to section 119 of the Act, as the cessation of your employment will be due to the failure by you to meet an inherent requirement of your position.

…

4.1. The Company reserves the right to change the location of your work, whether permanently or temporarily by giving you 1 weeks’ notice in writing. You acknowledge and agree that the Company can transfer you to a different location in accordance with this clause at its sole and absolute discretion. If your location changes during your employment, this Contract will continue to apply unless varied or replaced in accordance with its terms.” 5

Evidence relied upon by the parties

[9] I summarise the facts and evidence in this matter as follows:

(a) At the time of the cessation of her employment on 4 August 2021, the Applicant performed concierge services at one of the Respondent’s client locations in Sydney’s CBD (CBD placement).

(b) The Applicant was attending work at the CBD placement during the 2021 New South Wales winter COVID-19 virus “lockdown”, caused by the spread of the Delta strain of the virus into the community.

(c) The Applicant was struggling with the lockdown in the sense that because there were no (or hardly any) people coming into the office, she found herself alone at the concierge desk all day essentially doing nothing (and not interacting with anyone).

(d) As a result of the foregoing, on 26 July 2021, the Applicant requested that the Respondent grant her a period of stress/mental health leave. This request was approved by the Respondent for the period 27 July 2021 to 4 August 2021.

(e) On 4 August 2021, the Applicant attended a Microsoft Teams meeting whereby she was advised that the Respondent’s Sydney CBD client requires that the Applicant be removed from her CBD placement and replaced with someone else. This is reflected in an email (dated 29 July 2021) from the Sydney CBD client, which reads:

“Hi Janet,

As discussed, there have been some ongoing issues with Diana Sbrulati [sic] at McKell building and we would like to request a new concierge please.

If you need any further information please let me know.

Kind regards

Nicole” 6

(f) Pursuant to clause 2.9 of the Employment Contract, the Respondent put forward to the Applicant various alternative roles at different sites for the Applicant to perform, being:

“(i) 231 Elizabeth Street, Sydney CBD – Part Time hours.

(ii) 20 Ennis Road, Milsons Point, NSW – Full Time. [MP role]

(iii) Collections Officer role in the Accounts team at Glad Head Office – Full Time.”  7 [located at Rockdale, NSW] [GHO role]

(g) The Applicant states that she did not want to take the part-time role as she is employed on a full-time basis, and did not wish to move to part-time employment. In relation to the MP role, the Applicant states that she did not want to take that role as she did not want to travel to Milson’s point. In relation to the GHO role, whilst the Applicant was not concerned with the role’s location in Rockdale, she says that she was advised that she would need to interview for the role before a formal offer in relation to same would be made to her. The Applicant’s evidence is that she was also told that because she was being interviewed for the GHO role, even if she was successful in obtaining the role, this would trigger a new 6-month probation period, during which time she could be terminated for any reason. In short, the Applicant was concerned about the security of her employment should she have been successful in obtaining the GHO role.

(h) For its part, the Respondent denies that the Applicant was ever told by it, or any of its employees, that she would be subject to a new probation period if she took up the GHO role. Further, the Respondent submits that the terms of the Employment Contract do not allow for the Applicant to be placed upon a new probation period in respect of the GHO role (i.e. it is an internal role transfer). 8 The Respondent does accept that the Applicant would have needed to go through an interview process prior to being formally offered the GHO role, but considers that this would have been essentially a mere formality (which would have been told to the Applicant had she taken the time to make a relevant inquiry in this regard).

(i) On 4 August 2021, post the Teams meeting, the Applicant sent Mr Andreas Sarikakis, Concierge Account Manager of the Respondent, the following written resignation:

“Hi Andreas,

After careful consideration following today’s Teams Meeting, I have decided to tender my resignation.

Due to the fact that I currently have no shifts or work site to attend, this resignation will be effective immediately.

Thank you for giving me the opportunity to work for Glad Group for the past three years.

Warm regards,

Diana Sburlati” 9

(j) Subsequent to the receipt of the foregoing written resignation, on 5 August 2021, Mr Sarikakis sent an email response to the Applicant requesting that she clarify her position in respect of her resignation:

“Hi Diana,

Before moving forward, I just want to clarify, that you are declining the opportunity to continue with the internal transfer within our accounts team?

We want to ensure that if there is anything Glad Group can do for you, to keep you within the company, as you are a valuable asset to us, we explore that option.

As discussed we do have positions available to you, within your existing role and positions available in a different role within our company we fully support you going for.

Please let me know, Before moving we move forward with your letter submitted.

Kind regards,

Andreas Sarikakis” 10

(k) The Applicant respondent to that email on the same day, as follows:

“Hi Andreas,

I have resigned due to the fact that the position I have held over the past eighteen months was no longer there for me after I returned from stress leave/mental health leave during the current lockdown.

As it stands if I can’t return to the position I held prior to my sick leave I will have to resign.

I will appreciate if you can organise my final pay including all my annual leave.

I will also appreciate you and anyone from Glad from further contacting me again.

I will return my uniforms and McKell Access Card to you shortly.

Thank you.

Warm regards,

Diana Sburlati.” 11

(l) Mr Sarikakis then sent an email to the Applicant accepting her resignation:

“Hi Diana,

We acknowledge your resignation. Our first position is always to offer a suitable redeployment when a request comes from the client to have a team member removed from site, which we are contractually obliged to adhere to.

As discussed, we have provided 2 options and we confirm you decline both and such, accept your resignation effective of 5th August 2021.

You will be paid the remainder of your leave, in the next pay cycle.

We want to thank you for your time with us and wish you all the best on your next endeavour.

Kind Regards,

Andreas Sarikakis” 12

Legal principles

[10] On the issue of the Commission’s capacity and role to deal with disputes about “dismissal” in general protections involving dismissal applications, I adopt the principles set out by Deputy President Easton in Ryan Mount v Dover Castle Metals Pty Ltd, Matthew Haindl, George Tucker, Simon Tripp, 13 as follows:

“Generally, the FWC’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368 of the FW Act. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute.

The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (Milford) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:

(a) The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).

(b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).

(c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).

(d) that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).

(e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).

(f) in so determining the limits of its authority the FWC may determination matters of fact (at [71]).

(g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and

(h) the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).”

[11] Given that the Respondent has challenged the Applicant’s capacity to make a claim under s.365 of the Act, I must determine the limits of my authority to deal with the Applicant’s claim and, to the extent necessary, determine matters of fact.

What is a “dismissal”?

[12] A summary of the law, as it relevantly concerns the meaning of term “dismissal” under s.386 of the Fair Work Act 2009 (Act), is as follows:

“Dismissal

A person is dismissed pursuant to s.386 when:

a) employment with their employer has been terminated on the employer’s initiative (sub-s (1)(a)); or

b) they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (sub-s (1)(b)).

Background to constructive dismissal

The concept of forced resignation in s 386(1)(b) was not introduced until 2005. Prior to this, constructive dismissal was termination on the employer’s initiative.

As such, earlier cases refer to the test of constructive dismissal as termination at the initiative of the employer (s.386(1)(a) of the Act, however, these cases continue to be relied on in relation to both ss. 386(1)(a) and (b)).

More recent decisions refer to the Explanatory Memorandum to the Fair Work Bill 2008 regarding the two limbs of dismissal in s 386(1):

‘[Section 386]…is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer,’ (see, e.g., Mohazab…).

…[Section] 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

Case law

Mohazab v Dick Smith Electronics Pty Ltd remains the authority in relation to constructive dismissal, alongside O’Meara v Stanley Works Pty Ltd. In Mohazab, the IRCA considered the interpretation of termination at the initiative of the employee as:

c) “termination that is brought about by an employer and which is not agreed to by the employee”; and

d) “the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

Further, the Court said:

“…an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

In Rheinberger v Huxley Marketing Pty Ltd, the IRCA relied on the above passage in Mohazab and said:

“…it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect… I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

In Pawel v Advanced Precast Pty Ltd, the Commission said (at [15]) that there are circumstances in addition to whether the employer’s actions resulted in the employee’s termination to be considered:

“…an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee… We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.”

In O’Meara v Stanley Works Pty Ltd, the Commission reviewed the abovementioned authorities and concluded at [23]:

“…[The authorities] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” …In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

In Bruce v Fingal Glen Pty Ltd (in Liq), an employee resigned due to her employer repeatedly paying her salary late and failing to pay superannuation. The Commission adopted the summary of principles in O’Meara in respect of determining forced resignation pursuant to s.386(1)(b). Specifically, the Commission interpreted Rheinberger as qualifying Mohazab, as follows:

“…an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign… There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”

The Commission found that whilst it was possible and foreseeable (and in many respects a reasonable response) that the employee may have resigned as a result of the employer’s conduct, it was not the objectively probable result, and there were other avenues open to the employee.” 14

Forced resignation

[13] A “forced resignation” arises when an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was “forced” by their employer. The Applicant’s own subjective views about being forced to resign, or being placed in a situation that he/she was forced to resign, are not determinative. Rather, an employee must prove that the employer took action with the intent, or the “objectively probable result”, of bringing the employment relationship to an end. In short, if there were choices available to an employee other than resignation, it is not for an employee to simply assert that they had no choice but to resign at the ‘time’ they did. An employee “jumps the gun” on a resignation at their own peril. In many cases, an employee will resign in circumstances where they ought to have simply stayed employed and waited until further events unfolded, prior to making a decision to resign. In doing so, such an employee can hardly later come before the Commission and assert that they were forced to resign.

[14] In ABB Engineering Construction Pty Ltd v Doumit 15 a full bench of the Australian Industrial Relations Commission (as it then was) noted that the line distinguishing conduct that leaves an employee no real choice but to resign is narrow but must be “closely drawn and rigorously observed.”16 Where an employer’s conduct is “a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal,” it may be considered termination at the initiative of the employer.17 Conversely, where “the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely upon the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”18

Consideration

[15] A striking feature of the Applicant’s case in these proceedings is that it is based upon largely irrelevant information flowing from the Applicant’s own subjective understanding of her position. In this regard, at the hearing, the Applicant was at pains to point out that:

(a) no one had explained to her, or properly explained, reasons as to why she was being removed from the CBD placement; 19

(b) she had been victimised and discriminated against for asking questions about COVID-19; 20

(c) the Hon. Gladys Berejiklian MP, in her role as former Premier of New South Wales, had stated that nobody was to lose their job due to COVID-19, lockdowns, or related restrictions. 21

[16] In order to make a finding as to a forced resignation, the Commission is required to consider all the facts and circumstances of the particular case before it. Taking this approach, I find that that the Applicant, at the ‘time’ that she resigned, had clear choices other than resignation available to her. This is especially so having regard to the terms of the Employment Contract, which the Applicant readily accepts that she is bound by. 22 As Latham CJ of the High Court stated in Wilton v Farnworth23:

“In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. …” 24

[17] Having reviewed the terms of the Employment Contract, as set out in paragraph [8] of this decision, I do not accept that there is any basis upon which the Applicant would have been subject to a new probation period had she been successful in applying for the GHO role. Indeed, as the Respondent submits, this would have been an internal transfer, not the commencement of a new employment relationship between the parties. In short, to suggest that the Applicant had no choice but to resign, or was forced to resign, because she would have been subjected to a new probation period if she took up the GHO role (after an interview process) would be to proceed upon a false premise that is totally without basis under the terms of the Employment Contract.

[18] I equally do not accept the Applicant’s evidence or submissions that the Respondent told her that she would be on a new probation period if she commenced the GHO role. Indeed, when I sought to clarify this issue directly with the Applicant at the hearing, she became very ambiguous, i.e. “No, I didn’t clarify that” and “They told me at the time – see I think they did.” 25

[19] The Applicant also says that because she had to apply, and be interviewed, for the GHO role, she had no choice but to resign, or was forced to resign. In other words, on the Applicant’s case:

(a) she should have been offered the GHO role absent any requirement to apply or be interviewed; and

(b) given the requirement to apply and be interviewed, the GHO role was not guaranteed to be hers, and it may have turned out that she was ultimately unsuccessful in obtaining the GHO role. 26

[20] The difficulty with the foregoing is that the Applicant resigned before she had the opportunity to be interviewed (i.e. she “jumped the gun”). At the ‘time’ she resigned, the Applicant had the choice as to whether she applied for the GHO role (and got interviewed in respect of same) or left her employment. On the facts, the Applicant chose to resign, which was an open choice available to her. The Applicant did not need to resign at the ‘time’ she did. She could have chosen to wait and see how the interview process went.

[21] Ultimately, the most telling aspect of this case comes from the Applicant herself, in her email dated 5 August 2021, where she says that she resigned “due to the fact that the position I have held over the past eighteen months was no longer there for me after I returned from stress leave/mental health leave during the current lockdown. As it stands if I can’t return to the position I held prior to my sick leave I will have to resign.” On a plain reading of these words, the Applicant is saying that she considered that she had some form of right or entitlement to remain at the Sydney CBD placement unless there were good reasons for removing her, and when she was removed without explanation or investigation (perhaps on the whim of the Respondent’s client), she had no choice but to resign. I do not agree. The Applicant’s position ignores the terms of her Employment Contract and ignores the Respondent’s right to displace the Applicant at one site, and transfer her to another site (subject to questions of reasonableness). Simply because the Applicant does not agree to a new placement or alternative role at another site, does not give rise to circumstances where she is forced to resign (at least on the facts and circumstances presented to me at the hearing of these proceedings). Nor do I accept that it was somehow incumbent upon the Respondent to attempt to remedy the client’s decision to remove the Applicant from the CBD placement. As I understand the terms of the commercial contract between the Respondent and its client, which the Applicant is not a party to, a client has the right to have a placement removed for good reason, for bad reason, or for no reason at all.

[22] Finally, I note that the Applicant referred me to the case of Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473 (27 June 2013), being a decision of Justice Cameron of the (former) Federal Circuit Court of Australia. Having reviewed this case, I note that it does not deal with the question of “dismissal”. Rather, it is a case concerning whether an employee’s position was altered to their prejudice (i.e. whether adverse action had been taken), whether and what workplace rights had been exercised, whether the enterprise agreement had been breached, and whether any contravention of the Act had occurred. In short, the case does not assist the Applicant in these proceedings and does not assist me in determining whether or not the Applicant has been “dismissed”.

[23] In all the circumstances, I find that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. I further find that the Respondent was acting in accordance with its contractual rights under the Employment Contract when it removed the Applicant from the CBD placement, and that the exercise by the Respondent of those contractual rights was not conduct that had the objective probable result of bringing the employment relationship with the Applicant to an end (by way of forced resignation or otherwise).

Conclusion

[24] On the basis of the reasons set out in this decision and having regard to the evidence and the submissions of the parties, I find that in all the facts and circumstances, the Applicant was not “dismissed” within the meaning of s.386(1)(b) of the Act. In view of this finding, the Commission does not have jurisdiction to deal with the Application. The Application filed by the Applicant on 3 September 2021 is dismissed, and an Order to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Ms Diana Sbularti (Applicant), appeared for herself.

Mr Giovanni Villella, HR Manager, appeared on behalf of Glad Security Pty Ltd.

Printed by authority of the Commonwealth Government Printer

<PR736725>

 1 See s.366(1) of the Act, which provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act)). Taking 4 August 20201 as the agreed dated of the Applicant’s resignation (dismissal), her Application has been filed 9 days out of time.

 2 (2006) 231 ALR 663; [2006] HCA 55.

 3 Ibid at [172].

 4   Transcript at PN15-PN16.

 5   Ibid.

 6   Respondent’s Submissions dated 26 October 2021, Annexure A.

 7   Respondent’s Submissions dated 26 October 2021 at [18](d).

 8   Transcript at PN29-PN35; PN69-PN70.

 9   Respondent’s Submissions dated 26 October 2021, Annexure C.

 10   Respondent’s Submissions dated 26 October 2021, Annexure D.

 11   Ibid.

 12   Ibid.

 13   [2021] FWC 6043, at [3]-[5].

 14   Adapted from Dushanthi Jayamaha v Amelie Housing [2021] FWC 2848.

 15   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Transcript at PN23.

 20   See, for example, Transcript at PN49.

 21   Transcript at PN18.

 22   Transcript at PN15-PN16.

 23 [1948] HCA 20; (1948) 76 CLR 646.

 24 (1948) 76 CLR 646, at 649.

 25   Transcript, PN35.

 26   Transcript, PN29.

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