Emma Hames v IWM (PBH) Pty Ltd
[2023] FWC 976
•8 MAY 2023
| [2023] FWC 976 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Emma Hames
v
IWM (PBH) Pty Ltd
(C2023/346)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 8 MAY 2023 |
Application to deal with contraventions involving dismissal
Issue and outcome
Miss Emma Hames (the Applicant) was employed by IWM (PBH) Pty Ltd (the Respondent) as a truck driver. Having started work with the Respondent on or around 14 November 2022, the Applicant submits that she was notified of her dismissal on 21 December 2022, notwithstanding that it took effect on 16 December 2022.[1]
The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[2] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[3] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of ss 386(1)(a) and/or (b) of the Act.
The short answer to that question is that the Applicant was not ‘dismissed’ by the Respondent but resigned voluntarily.
Background
The Respondent operates a bin hire business under the name of Perth Bin Hire. Essentially, it is a waste collection and management business, providing a bin service to a large number of businesses and private clients.
According to the Respondent, November and December each year are its busiest months and there is generally a shortage of drivers and general workers in that particular industry. The Respondent stated that it relied on its drivers to attend work to service its clients’ bin requirements. The Respondent added that when a driver does not attend work without notice, it means more work for others and/or it must cancel jobs for its customers.
It appears uncontroversial that the Applicant worked for the Respondent for five weeks, and within that period attended work on 13 occasions despite being employed on a full-time basis.[4] The Respondent stated that reasons for non-attendance included that the Applicant had slept in,[5] that it was her birthday,[6] that she was moving her ‘RV’,[7] and that she was simply not attending work.[8]
The Applicant states that she raised a safety concern regarding the soundness of a truck’s gearbox and clutch.[9] Further, on the afternoon of 12 November 2022, she immediately reported when the ‘rams’ broke.[10] The Applicant gave evidence that as a female truck driver, she was the only person to have an old clunky truck with no online mapping, no remote tipping for bins, no ‘cb’ and no female only toilet.[11]
Addressing the safety concerns that the Applicant raised in her application, the Respondent firstly observed that the Applicant refers to having reported safety concerns on 12 November 2022, which was prior to the commencement of her employment.[12] Notwithstanding the Respondent acknowledged that the Applicant brought to its attention that the truck was not operating correctly, it was jerking and the boom was not moving. The Respondent stated:
a)the Applicant sent a text message to Mr Salvo Agostino (General Manager) on 21 November 2022 referring to a loose cab. The Respondent stated that it was the Applicant’s job to perform the pre-start and lock down the cab correctly (which Mr Agostino had showed her how to do on several occasions);[13]
b)the Applicant sent a text message to Mr Agostino on 27 November 2022 in which she said she did not want to drive the truck as it was hurting her back. The Respondent said, again, this was because the Applicant had not locked the cab down correctly;[14] and
c)the Applicant’s contention that the manual truck was jerking was correct, but was caused by the Applicant leaving the power take-off switch (PTO) on, which precludes the truck driver from changing gears. The Respondent stated that the Applicant drove a couple of manual trucks and forgot to turn the PTO off on the truck on at least two occasions that the Respondent is aware.[15]
Concerning assertions that the Application was treated differently as a female truck driver, the Respondent denied that was the case.[16]
Mr Agostino stated that on 14 December 2022 (a Wednesday), the Applicant did not come to work. Mr Agostino said that he called the Applicant and the Applicant said to him, ‘I am not…coming back to work’ and then she hung up the phone.[17]
At hearing, the Applicant gave evidence that on the Wednesday morning she had said to Mr Agostino that she refused to work if required to drive a particular truck.[18] In her witness statement, the Applicant provided further detail stating:
I phoned Sal on the Wednesday morning and let him know that I do not want to drive that particular truck, for safety reasons, rams were not working properly, gearbox clutch, and I felt the truck was wearing on my back and shoulder, stressing me out. I was told there wasn't another truck to drive.[19]
The Applicant said that she was not offered another truck to drive and did not hear from the Respondent on the Wednesday or the Thursday after the call from Mr Agostino. The Applicant noted that it was ‘under protest that I had the Wednesday off’,[20] and that she was emotional in the telephone call.
According to the Respondent, the Applicant rang the office on 16 December 2022 wanting to speak to the Payroll Department.[21] The Applicant confirmed that this was the case, stating that she had spoken to a lady who told her she was no longer suitable for this job. Then, said the Applicant, she was told about the monies they (presumedly the Respondent) would pay
her, and then the lady quickly dismissed the phone call.[22]
Ms Sha Di, the accountant and payroll officer of the Respondent, gave evidence regarding her conversations with the Applicant in the afternoon of 16 December 2022. At hearing, Ms Di refers to having had three conversations with the Applicant on that afternoon, each initiated by a phone call from the Applicant.
Ms Di recalled that in the first phone call, the Applicant complained about issues with the Respondent’s trucks.[23] Ms Di recalls that the Applicant informed her that she was not able to work in an unsafe truck and will not come back to work. Ms Di said that she informed the Applicant that if she felt unsafe to work at the Respondent business, she could discontinue her work and then she would confirm the payments the Applicant would receive.[24]
Ms Di said that following the first telephone call, the Applicant called her back. It is unclear from Ms Di’s evidence whether it was in the first telephone call or the second, in which the Applicant informed her that she just needed to be paid and provided the information on the payment if she chose not to work for the company. Nevertheless, Ms Di said that she informed the Applicant that she may receive payment for any worked hours for the week, along with one week’s notice period and any unused annual leave upon termination.[25]
Ms Di said that in the second phone call the Applicant asked her to send her an email to confirm that she would pay the Applicant, and that the Applicant asked for an immediate payment. Whilst the Applicant repeatedly informed her that she wanted to be paid now, Ms Di said she informed the Applicant that she would be unable to pay her until the Monday, 19 December 2022.
In cross examination, it was suggested to Ms Di that she had informed the Applicant that she was not suitable for the job. Ms Di adamantly rejected the proposition, stating that she had never said that, and it was outside the scope of her authority to make the suggestion.
It was further proposed to Ms Di that the Applicant had simply been asking about her wages for that week. Ms Di rejected that proposition and stated that the Applicant did not say that and that the Applicant had said she chose not to work for the company because ‘our truck has issues’.
In the Respondent’s materials, it is purported that the Payroll Department spoke to Mr Agostino and discussed whether the Respondent would accept the Applicant’s resignation and end the employment relationship. The Respondent’s view is that it was agreed that the Respondent would pay all accrued entitlements due plus one week’s pay in lieu of the Applicant’s notice period.[26]
By letter of 16 December 2022 signed off by Mr Agostino, the Respondent informed the Applicant:
This letter confirms the termination of your employment with Perth Bin Hire as per our discussion on 16 December 2022. You agreed the termination of your employment is effective from 16 December 2022. Your final pay includes the hours worked for the week ended on 16th December 2022, and any unused annual leave. Also included is one week’s pay in lieu of notice period. It will be processed on Monday 19 December 2022.[27]
2.1 The Applicant’s submissions
The Applicant relies on one argument to defeat the Respondent’s jurisdictional objection. That argument is that she did not resign on 14 December 2022 or on 16 December 2022. It follows that the Applicant is not arguing that she was forced to resign, but instead that the Respondent terminated her employment on its initiative. Further, the Applicant in effect questioned the veracity of Ms Di’s evidence. It can be inferred from the Applicant’s evidence and submissions that she considered Ms Di was not to be believed.
2.2 The Respondent’s submissions
The Respondent’s position is simply that the Applicant resigned from her employment in the conversation held with Mr Agostino on Wednesday, 14 December 2022, and that the Applicant confirmed that resignation in her discussion with Ms Di on Friday, 16 December 2022.
Consideration
The consideration in this case extends to whether the Applicant resigned or whether her employment was in fact terminated. The Applicant has not advanced an argument that she resigned in the heat of the moment or because of a course of conduct engaged in by the Respondent. Therefore, relevant to the consideration is the case law on resignation and that which considers the operation of s 386(1) of the Act, particularly s 386(1)(a).
Turning first to a resignation, in Canberra Urology Pty Ltd v Lancaster,[28] the Full Bench traversed the reasoning of his Honour in Koutalis v Pollett,[29] a case in which his Honour considered the words and conduct that would or would not lead to a finding of resignation:
[28] In Koutalis, at issue was whether Mr Pollett resigned or was constructively dismissed. In relation to the former issue His Honour said:
“The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]]. (emphasis added)
In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.” (emphasis omitted)
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. However, that section is relevant for present circumstances. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386. Section 386 reads:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[30] in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[31]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) further considered the operation of s 386(1)(a), expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[32]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[33] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[34]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[35] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
The determination of whether the Applicant resigned or whether the Respondent terminated the Applicant’s employment, hinges greatly on the evidence of the three witnesses and an assessment of their credibility. For reasons that will become apparent, I prefer the evidence provided by Mr Agostino and Ms Di.
Turning first to the telephone discussion between the Applicant and Mr Agostino on 14 December 2022. The Applicant claims to have called Mr Agostino and Mr Agostino claims to the contrary. In support of his evidence on this point, Mr Agostino draws upon the phone record at Annexure AC01 (page 46 of the Digital Hearing Book), which shows that on 14 December 2022 at 05:47AM, there was a 31 second call to the mobile phone number of the Applicant.
This direct evidence supports Mr Agostino’s account that he called the Applicant. Further, Mr Agostino’s account about the succinctness of the call is corroborated by the phone record, which also shows that the call was relatively short. Mr Agostino speaks of having telephoned the Applicant about her non-attendance and thereafter being advised that she was not coming back to work, and she hung up the phone. This contrasts to the Applicant’s account where she says she called Mr Agostino and let him know that she did not want to drive the particular truck for safety reasons, rams were not working properly, there were issues with the gearbox clutch, she felt the truck was wearing on her back and shoulder, and that it was stressing her out. The Applicant, in that 31 second interval, also says she was told that there was not another truck to drive.
Mr Agostino’s evidence about the telephone discussion on 14 December 2022 between him and the Applicant is supported by direct evidence regarding him having made the call. The Applicant did not challenge the telephone record or seek to correct or concede that she had not made the call. In this respect, I consider Mr Agostino’s evidence compelling such that I consider that he had provided a truthful account about what was said in that telephone call.
The Applicant’s statement that she was not coming back to work was, in my view, unequivocal in its terms. Whilst the Applicant did not adopt the turn of phrase, ‘I resign’, the inference is open to find that this is effectively what she communicated to Mr Agostino that morning.
At hearing, the Applicant gave evidence that during the telephone call of 14 December 2022, she was emotional in the call. Further, in her witness statement, the Applicant spoke of being stressed out because the truck was wearing on her back and shoulder. While the Applicant does not contend that she resigned or that she resigned in the heat of the moment, the conduct of the parties following the telephone call of 14 December 2022 is worth considering.
The Applicant made no further contact with Mr Agostino after the call on the Wednesday. Furthermore, the Applicant did not present for work on the Wednesday, Thursday or for that matter on the Friday although she was a full-time employee.
The Applicant explains that her absence on the Thursday and Friday was because she had not received communication from the Respondent to work, and because she presumed the truck was being fixed, and no other truck was available. I note further that the Applicant asserted that Mr Agostino routinely communicated with her through text message, and he had not communicated with her by that method on those days.
When the Applicant did contact the Respondent, it was not to speak to Mr Agostino to whom the Applicant had spoken to on the Wednesday, but instead it was to speak to ‘Sharon’ ‘to see what was happening’ and thereafter ‘payroll’.
Ms Di managed the Respondent’s accounts and payroll. In respect to her evidence, I found her to be a convincing witness who was unfaltering in her account under cross examination. Ms Di gave a comprehensive verbal evidence of what transpired across the three telephone calls from the Applicant on 16 December 2022. The account was spontaneous, candid, and believable, and as such I accept her evidence.
It was apparent from Ms Di’s evidence that she was seemingly unaware that the Applicant had informed Mr Agostino that she was not coming back to work. Ms Di’s evidence was that it was her who broached with the Applicant that she could discontinue her employment if she felt unsafe, and that she explained to the Applicant the payment the Applicant would receive if her employment terminated. The discussion between Ms Di and the Applicant on 16 December 2022 suggests that the Respondent had not acted upon the Applicant’s communication to Mr Agostino on 14 December 2022. While Mr Agostino contends that the Applicant resigned at this time, it is evident that the Respondent’s Payroll Department was unaware of this and, it would seem from Ms Di’s evidence, had not been requested to process a resignation.
I have found that when the Applicant contacted Ms Di on the afternoon on 16 December 2022, she did so several times. It is evident that Ms Di provided her with options in the first call and allowed the Applicant time to consider what she wanted to do. Ms Di gave evidence that on the Applicant’s second call, the Applicant informed her that she wished to terminate her employment and requested an immediate pay out.
Having accepted that the Applicant informed Mr Agostino on 14 December 2022 that she was not ‘coming back to work’,[36] and that the Applicant had advised Ms Di that she wished to terminate her employment and requested to receive an immediate payment, it is necessary to consider whether such communication in all the circumstances constituted a resignation.
The evidence presented does not suggest that the Respondent seized the opportunity to accept the Applicant’s communication that she would not be coming back to work on 14 December 2022. Whilst Mr Agostino asserts that the Applicant had resigned from her employment at this time, there is a lack of evidence to show that the Respondent took action to confirm the resignation or otherwise process the resignation. Based on the evidence provided, I am unable to find that the Applicant had resigned from her employment on 14 December 2022.
When the Applicant held further discussions with Ms Di on 16 December 2022, it is apparent that Ms Di provided the Applicant with time to consider what she wanted to do with her employment. I find that Ms Di did not inform the Applicant she was unsuitable for the position and did not advise the Applicant that her employment had been terminated. Based on the evidence provided, I find that it was the Applicant who unequivocally brought her employment to an end by confirming to Ms Di that she wished to terminate her employment on 16 December 2022. She did so in circumstances that were not inflamed by the heat of the moment.
On an objective level, the Respondent’s conduct did not indicate there was an intention to bring the employment relationship to an end. The Applicant confirmed with Ms Di that she wished to terminate her employment with the Respondent on 16 December 2022 and she did so by the adoption of unambiguous words.
The letter of termination is poorly drafted and does not refer to the Applicant having resigned; it simply confirms the termination of the Applicant’s employment by reference to the discussion held on 16 December 2022. It is apparent from the evidence that the discussion referred to in the letter of termination is the discussion between Ms Di and the Applicant. Further, the letter aligns with Ms Di’s evidence that the Applicant sought the immediate processing of her final termination payment. I do not consider that the letter of termination detracts from a finding that the Applicant unequivocally resigned from her employment and did so voluntarily.
The Applicant has referred the Commission to the enquiry she made to the Fair Work Ombudsman (FWO) in respect of the termination of her employment on 16 December 2022. However, the evidence, provided at page 15 of the Digital Hearing Book, fails to illuminate the content of the discussion held with the FWO and as such does not advance the Applicant’s case.
A further enquiry was made by the Applicant to WorkSafe. However, again, the evidence provided does not assist in the determination of whether the Applicant resigned or had her employment terminated by the Respondent.
Conclusion
It is trite to say that the Commission is only able to make a decision based on the evidence before it. However, it is important for the parties to appreciate this. In this case, the evidence led to findings of fact which give rise to a conclusion that the Applicant was not ‘dismissed’, as understood by reference to s 386(1) of the Act. I have concluded that it was quite clearly the discretion of the resigning employee, the Applicant, which gave rise to the termination of her employment.
The application is therefore dismissed. An Order[37] is issued to this effect.
DEPUTY PRESIDENT
Appearances:
E Hames, Applicant.
S Agostino for the Respondent.
Hearing details:
2023.
Perth (by video and telephone):
3 May.
[1] Form F8 – General protections application involving dismissal, [1.2], [1.3] (Form F8); Digital Hearing Book, 5 (DHB).
[2] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[3] Ibid 602 [51].
[4] Respondent’s Outline of Submissions, 3 (Respondent’s Submissions); DHB (n 1) 44.
[5] Respondent’s Submission (n 4) annexure SAL01; DHB (n 1) 32.
[6] Respondent’s Submission (n 4) annexure SAL03; DHB (n 1) 34.
[7] Respondent’s Submission (n 4) annexures SAL02, SAL03 and SAL04; DHB (n 1) 32–4.
[8] Respondent’s Submission (n 4) annexure SAL03; DHB (n 1) 34.
[9] Form F8 (n 1) [3.1]; DHB (n 1) 7.
[10] Form F8 (n 1) [3.1]; DHB (n 1) 7.
[11] Form F8 (n 1) [3.1]; DHB (n 1) 7.
[12] Respondent’s Submission (n 4) 3; DHB (n 1) 29.
[13] Respondent’s Submission (n 4) 3; DHB (n 1) 29.
[14] Respondent’s Submission (n 4) 3; DHB (n 1) 29.
[15] Respondent’s Submission (n 4) 3; DHB (n 1) 29.
[16] DHB (n 1) 29–30.
[17] Respondent’s Submission (n 4) 4; DHB (n 1) 30.
[18] Form F8 (n 1) [3.1]; DHB (n 1) 7.
[19] DHB (n 1) 11.
[20] Ibid.
[21] Respondent’s Submission (n 4) 4; DHB (n 1) 30.
[22] DHB (n 1) 11.
[23] Witness Statement of Sha Di (Di Statement); DHB (n 1) 51.
[24] Di Statement (n 23); DHB (n 1) 51.
[25] Di Statement (n 23); DHB (n 1) 51.
[26] Respondent’s Submissions (n 4) 3; DHB (n 1) 44.
[27] DHB (n 1) 38.
[28] [2021] FWCFB 1704.
[29] (2015) 235 FCR 370.
[30] (2017) 271 IR 245.
[31] Ibid 268–9 [47].
[32] (2018) 273 IR 126, 129–30 [10]–[11].
[33] (1995) 62 IR 200 (Mohazab).
[34] (2016) 262 IR 221, 228 [23].
[35] Mohazab (n 33) 205.
[36] Respondent’s Submissions (n 4) 4; DHB (n 1) 30.
[37] PR761666.
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