Faith Taylor v Talent International Pty Ltd
[2023] FWC 1357
•9 JUNE 2023
| [2023] FWC 1357 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Faith Taylor
v
Talent International Pty Ltd
(U2023/3648)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 9 JUNE 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 27 April 2023, Ms Faith Taylor (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by Talent International Pty Ltd (the Respondent) on 17 March 2023. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that it had been filed outside of time and the Applicant was not an employee. This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect and the other, whether the Applicant was protected from unfair dismissal.
Unquestionably, the parties are in dispute over whether the Applicant was dismissed. The Applicant clearly considers she was, notwithstanding that the Respondent asserts that she was not its employee. However, the first issue requiring attention is whether the application has been validly made.
The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
In Herc v Hays Specialist Recruitment (Australia) Pty Ltd, the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[1] It is accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[2] The proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[3] This of course requires an assumption that an applicant is an employee for this purpose.[4]
For the reasons that follow, I have found that the Applicant’s working relationship ended on 17 March 2023. It follows that the Applicant’s application was made sixteen days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[5] to this effect will be issued with this decision.
Background
The broader context and events leading to the conclusion of the working relationship and the making of the unfair dismissal application have been derived from the evidence of the Applicant and Mr Kelly Williams, Principal Consultant of the Respondent. Mr Williams states that he is responsible for recruiting in Western Australia for the National Disability Insurance Agency (NDIA).[6]
According to the Applicant, she was employed at the NDIA, contracted through the Respondent. The Applicant commenced work as a Case Manager – NDIA – Administrative Appeals Branch in May 2022 until the termination of her working relationship on 17 March 2023.[7]
Mr Williams states that the Applicant was engaged as an independent contractor by the Respondent between 23 May 2022 and 17 March 2023 pursuant to a contractor agreement dated 30 May 2022 (Contractor Agreement).[8] Mr Williams confirmed, similarly to the Applicant, that the position the Applicant held was that of Case Manager for the NDIA in Western Australia.
The Contractor Agreement set out, amongst other matters:
2. COMMENCEMENT OF AGREEMENT
2.1. This Agreement shall commence upon the date when the Contractor starts to perform the first Assignment with a Client for and on behalf of the Principal and shall continue to operate until terminated in accordance with clauses 11.6 or 10 of this Agreement.3. APPOINTMENT OF THE CONTRACTOR
3.1. The Principal appoints the Contractor to provide the Services as set out in the SOA to the Principal, or a Client of the Principal, as required by the Principal in accordance with this Agreement.
3.2. The Contractor is deemed to have accepted the terms and conditions of this Agreement, regardless of whether the Agreement is signed or not, where the Contractor commences an Assignment with a Client.
3.3. The Principal will confirm the terms and conditions of any Assignment within a separate SOA which shall be issued to the Contractor prior to the commencement of an Assignment. This Agreement, and any SOA issued to the Contractor from time to time in relation to an Assignment with a Client, will form the terms and conditions of the relationship between the parties.
3.4. This Agreement shall apply to all Assignments performed by the Contractor. In periods where the Contractor is not performing an Assignment, the terms of this Agreement will continue to apply but, in such period, there will be no obligation upon the Contractor to provide any Services.
3.5. The Principal and/or the Client will provide an appropriate level of instruction regarding its requirements and guidelines to enable the Contractor to provide the Services and may direct the Contractor to make reasonable changes to the Services, including additions, omissions or reductions.
3.6. It is at the Principal’s absolute discretion how frequently it requests the Contractor to perform the Services and the amount of Services it offers the Contractor to perform. This Agreement is no guarantee of the frequency or amount of Services that may be offered by the Principal.
4. NATURE OF RELATIONSHIP
4.1. The Contractor is engaged by the Principal as an independent contractor and nothing in this Agreement constitutes the Contractor an agent, employee or partner of the Principal or a Client.
4.2. It is the express intention of the parties that the Contractor is in all respects an independent contractor and no other relationship or authority will be inferred or implied.
4.3. The Contractor has no authority to incur, and must not incur, any obligations or liabilities on behalf of the Principal or a Client except with the prior approval of the Principal or Client.
4.4. Subject to this Agreement, the parties acknowledge that the Contractor is solely responsible for controlling the manner in which the Services are undertaken…[9]
Mr Williams said that on 1 March 2023, the Respondent decided to terminate the Contractor Agreement with the Applicant, and therefore he advised her of the end of her contract. Mr Williams observed that the Contractor Agreement allows for either party (the Respondent or the contractor) to give notice to the other party that the agreement can be terminated. Mr Williams said that the standard period of notice provided by the Respondent is 10 business days.[10]
Mr Williams said that on 1 March 2023 he verbally advised the Applicant of the termination of the Contractor Agreement and shortly after he followed this up with an email confirming the end of her assignment.[11]
The Applicant confirmed that on 1 March 2023, Mr Williams contacted her via email and requested that she call him as soon as possible, when available. The Applicant said that she called Mr Williams who advised her that her contract had been terminated due to excessive sick leave, and that the folk liked her at the NDIA and she could work out her two weeks’ notice of termination.[12] The Applicant purported that Mr Williams had stated to the effect that the decision ‘was out of his control’, as the Respondent had large contracts with government and he could not jeopardise these (or words to that effect).[13]
The Applicant stated she had always supplied medical evidence of her sick leave to the NDIA and advised them in a timely manner.[14]
Mr Williams said that on 23 March 2023, he received an email from the Applicant enquiring about receipts being left in one of the laptop bags.[15] The email read:
Can you please check the bag with the laptops in. I maybe left some receipts in there. Can you hold them and return them when I’m back from Thailand…[16]
Mr Williams said he responded to the Applicant’s email later that day on 23 March 2023, to advise her that he could not find any receipts.[17]
On 24 March 2023, Mr Williams received an email from the Applicant regarding remittal of a payment which the Applicant thought had been due for 16 and 17 March 2023.[18] The email dated 24 March 2023 time stamped 7:59 PM stated:
Daniel mentions below my remittal of payment to include dates 16/17 March 2023. It is unfortunate that the end of my contract has seen me unwell due to medical circumstances. Further exacerbated by this confusion of my lady payment date due to their decision to terminate my contract early.
Yesterday I had a bp reading of 184/120, close to a stroke or potential heart attack.
A situation that should not have happened.My last payment was for 4 days( as they advised you they were not going to pay me for the public holiday. The Agency requested I end my employment early, however remittal would include an additional 2 days to include 13/14/15 March 2023, and then plus 16/17 March 2023 to take it to week ending 17 March 2023.
To date my remittance has been to the end of the previous week(4 days due to the public holiday), 10 March 2023.
I am fortunate to being financially sound.
I am upset that I have been terminated, and then additionally no courtesy given to respond to communication sent to the Agency. I now understand participant’s frustration, for me of being so easily terminated and then ignored with no lead up conversation.
I am a kind person, and have shown great strength while dealing with this humility. All folk have a given threshold capacity, yesterday my medical results proved greater than me.
In the email correspondence provided at Annexure KW-5, the Applicant had emailed Rebecca Falkingham, NDIS, Daniel Flowers, Branch Manager AAT Case Management NDIA, and Matthew Swainston of the NDIS on 23 March 2023. Mr Swainston responded to the Applicant on 24 March 2023, to which the Applicant replied by email dated 24 March 2023 time stamped 2:50PM:
Dear Matthew
Thank you for your response. Unfortunately, given how both Alice and Sarah treated me I will be advising Fair Work Australia through the IR Commission.
Last week I was to be paid up until the 17 March 2023, I did the right thing, submitted my time sheet in 17th March 2013, and returned all my IT gesr( 2 Laotian) and passes.
My time sheet has not been approved. Today is Friday, 24 March 2023, there unfortunately had
been in approval of my timesheet submitted to Sarah has been ignored. Sarah may be efficient at matters, unfortunately Sarah does not have the capability to be managing staff at a professional level.Please advise me today what time I can expect my timesheet to be approved and processed today 24 March 2023. Not approving my timesheet is not an oversight, it’s been ignored by Sarah, she is the person approving this.
Kind regards and enjoy your weekend with your family
Mr Williams said that on 25 March 2023, he received a text message from the Applicant in which she stated:
Hi – FYI… NDIS Kelly has caused me a lot of grief this week. Their lack of response/s until very late yesterday has resulted in my being hospitalised with a heart attack last night at FSH…
The process of termination of someone they apparently “liked” was very poorly managed. I have volumes of managerial experience in Government, this should never have resulted in today’s outcome if it had been managed in a human like manner.[19]
Mr Williams gave further evidence that:
a) on 29 March 2023 he emailed the Applicant replying to her email dated 24 March 2023 regarding payment, and confirmed payment would be in her account overnight;[20]
b) on 5 April 2023, he received a further email from the Applicant requesting the reasons for her termination;[21]
c) on 8 April 2023, he received a further email from the Applicant following up her email of 5 April 2023;[22] and
d) on 11 April 2023, he replied to the Applicant to confirm that the Respondent had terminated her Contractor Agreement in accordance with its terms by providing ten days’ notice.
Included in the Applicant’s evidence was:
a) a medical certificate certifying that she would have incapacity for work, study or participation in activities for the period 5 April 2023 to 4 June 2023 – date 5 April 2023;[23]
b) a ‘Discharge Summary’ regarding a hospital admission on 25–26 March 2023;[24] and
c) medical imaging appointments on 20 April 2023 and 21 April 2023.[25]
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[26] It is accepted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together, can be considered exceptional.[27]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[28]
3.1 Reason for the delay
As observed, the Applicant’s last day of work was 17 March 2023 and her unfair dismissal application was made on 27 April 2023, some sixteen days outside of the statutory period.
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[29] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[30]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[31] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[32]
In her Form F2, the Applicant initially stated that the delay in making her application could be explained on the basis that she was waiting for a ‘Separation Certificate’, and for information as to the reason for her termination to be provided in writing.[33]
The Applicant further explained that the delay in making her unfair dismissal application was due to her having been admitted to hospital on 24 March 2023 by ambulance, along with various medical follow ups after a number of medical episodes. The Applicant described having mostly convalesced at home with limited capacity during the delay period.
The evidence shows that the Applicant had a hospital admission in the period 25–26 March 2023, the period within which the unfair dismissal application was due to be filed. At that time, the Applicant was capable of sending a text message to Mr Williams in which she stated that ‘[t]heir lack of response/s until very late yesterday has resulted in my being hospitalised with a heart attack last night as FSH…’. The Discharge Summary admitted into evidence does not evince that the Applicant suffered a heart attack.[34]
Thereafter the Applicant was certified as having an incapacity for work, study, or participation in activities for the period 5 April 2023 to 4 June 2023. However, such incapacity was limited to being unable to participate in activities of eight or more hours per week. Whilst afflicted with incapacity, the Applicant was still able to correspond with Mr Williams regarding requests for reasons for the termination of the working relationship,[35] and was able to attend medical imaging appointments on 20 April 2023 and 21 April 2023.[36]
In addition the Applicant was able to engage in the following:
a) email on 11 April 2023, from the Applicant to Matthew Swainson, Rebecca Falkingham and Daniel Flowers requesting a Separation Certificate;[37]
b) email on 13 April 2023, from the Applicant to Daniel Flowers (and copying in Matthew Swainson, Rebecca Falkingham and Mr Williams) regarding the grievances pertaining to her termination;[38]
c) email on 13 April 2023, from the Applicant to Mr Williams (and copying in Matthew Swainson, Rebecca Falkingham and Daniel Flowers) regarding the termination of the Contractor Agreement;[39]
d) email on 18 April 2023, from the Applicant to Mr Williams regarding the termination of the Contractor Agreement;[40] and
e) email on 18 April 2023, from the Applicant to Mr Williams, in which she states “The rest I will leave up to the IRC to determine”.[41]
It is observed that in the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[42]
To have filed her application within the statutory period, the application was required to be made by 11 April 2023. At this time the Applicant was able to make enquiries with Mr Williams in respect to the termination of the working relationship with the Respondent. Whilst the Applicant was admitted to hospital on 25–26 March 2023, this event did not fall within the delay period. The evidence however does point to there being two days on which the Applicant attended medical imaging appointments on 20 April and 21 April 2023. Notwithstanding attendance at medical appointments within the delay period, the Applicant was able to correspond with various parties as referred to in paragraph [32] of this decision.
The Respondent submitted that the actual reason for the delay appears to have changed from the Form F2 to the submissions later filed by the Applicant. According to the Respondent, this is the result of the Applicant’s subsequent understanding that her initial explanation in the Form F2 was insufficient to warrant an extension of time. However, at hearing the Applicant did not shy away from her contention that she was waiting to feel better prior to lodging her unfair dismissal application and she was awaiting the Separation Certificate.
At its highest, the Applicant’s evidence only supports a contention that she was unable to file her application for a period of two days during the delay period, because she was attending medical imaging appointments on those two days.
The evidence shows that the Applicant had turned her mind to making an unfair dismissal application on 24 March 2023 and 18 April 2023, and yet waited until 27 April 2023 to make such application. The material before the Commission and the Applicant’s oral evidence discloses that the Applicant made a choice to delay filing her unfair dismissal application until in receipt of a Separation Certificate and the reasons for the termination of the Contractor Agreement. Furthermore, her incapacity from a health perspective, was, in my view, limited to a period of two days, hence leaving 14 days of the delay period unaccounted for. I do not find that any of the matters relied upon by the Applicant to explain the reasons for the delay in making her unfair dismissal application individually or collectively prevented her from lodging the application within time. Nor does the Applicant point to any other matter that establishes that she was prevented from or seriously impeded in lodging the unfair dismissal application within time. This weighs against a finding of exceptional circumstances.
3.2 Whether the person first became aware of the dismissal after it had taken effect
On 1 March 2023, the Applicant was notified by Mr Williams that her working arrangement with the NDIA would come to an end on 17 March 2023. It was therefore not the case that the Applicant was taken by surprise by the end date of the working relationship or came to learn of it after the working relationship had concluded. The Applicant was aware of the termination prior to the termination date. In all the circumstances, I consider this to be a neutral factor.
3.3 Action taken by the person to dispute the dismissal
The Applicant speaks of the steps she took to dispute the ‘dismissal’ prior to making her unfair dismissal application. The circumstances the Applicant refers to are communications regarding an explanation for her absences and how the NDIA did not align with the values that they spoke of, her upset of having been ‘terminated’,[43] and as of 23 March 2023 that she would be making an application to ‘Fair Work Australia’ concerning the treatment afforded to her by two NDIA staff.[44]
It is not the case that the Applicant simply acquiesced to the information that the working relationship was to be terminated. In respect of disputing the termination of the Contractor Agreement with the Respondent, the Applicant did, in my view, take steps to dispute her ‘dismissal’ with the Respondent notwithstanding that much of her correspondence was directed at the NDIA.
On balance, the evidence indicates the factor weighs in favour of finding of exceptional circumstances.
3.4 Prejudice to the employer
The Respondent submitted that it should not be put into a position to expend further resources and time on an unmeritorious claim where it is clear that there are no exceptional circumstances justifying the granting of an extension of time. However, there has not been a long delay in making the application such that would give rise to a general presumption of prejudice against the Respondent. It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[45] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[46] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[47]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[48] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
The Respondent submitted that the application lacked merit based on the point that the Applicant was engaged as an independent contractor pursuant to the Contractor Agreement. The Respondent continued that for the Applicant to be protected from unfair dismissal the termination must be in relation to an employee-employer relationship not a principal-contractor relationship. At this point the merits of the Applicant’s case would appear to be grim on the face of it in light of judgments such as Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[49] and ZG Operations Australia Pty Ltd v Jamsek.[50]
However, it is not expected at this stage that the merits of the application or a jurisdictional objection to the same would be fully explored. As such, the merits in this case are a neutral factor.
3.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[51]
It follows that the focus is on the issue of fairness as between the Applicant and other persons in a similar position in relation to matters currently before, or previously decided by, the Commission. Whilst the Respondent did not consider this to be a relevant factor in the application because there were no persons in a similar situation, the Respondent drew the Commission’s attention to several cases, one of which it said was similar to the application on foot.
In Lyons v The Trustee For The Barlow Family Trust (Lyons),[52] the applicant in that matter lodged her application 12 days outside of the statutory timeframe, stating that chest pain and heart palpitations had resulted in her being taken to the hospital by ambulance and hence was the reason why she could not meet the deadline. Notwithstanding, the Commission determined that there were no exceptional circumstances when the totality of the evidence was considered.
Lyons differed to the case before me now. No medical evidence was called by the applicant in Lyons albeit that there was documentary evidence of medical appointments and monitoring. Importantly, however, the Commission in Lyons accepted that the general approach adopted by the Commission to considering whether a delay based on a health condition is an acceptable or reasonable explanation is to consider whether the evidence demonstrates that the condition had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit.[53] An approach that has been adopted in this matter. In this respect, I refer to paragraphs [33] and [37] of this decision.
However, in relation to this factor, I find that there is no evidence for me to weigh in my assessment of whether there are exceptional circumstances. I therefore regard this as a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
The Applicant has not provided a satisfactory explanation for the whole period of delay in making her application. The remaining matters I need to consider, either support a finding of exceptional circumstances (steps taken to dispute the end of the working relationship) or are otherwise neutral in this respect. In these circumstances, having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted. In my view the reasons for the delay weigh heavily against a finding of exceptional circumstances and while the Applicant did take steps to dispute the termination of the working relationship, for the most part of the steps taken were directed toward the NDIA rather than the Respondent. Furthermore, whilst the Applicant had contemplated making an unfair dismissal application as early as 23 March 2023, she exhibited no sense of urgency to make such application.
Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
F Taylor, Applicant
D Sztrajt for the Respondent
Hearing details:
2023.
Perth (by telephone):
7 June.
[1] [2022] FWCFB 234, [15].
[2] Ibid.
[3] Ibid [17].
[4] Ibid.
[5] PR762934.
[6] Witness Statement of Kelly Williams, [1] (Williams Statement).
[7] Witness Statement of Faith Taylor [2] (Taylor Statement).
[8] Williams Statement (n 6) [4], annexure KW-1.
[9] Ibid annexure KW-1.
[10] Ibid [5].
[11] Ibid [6], annexure KW-2.
[12] Taylor Statement (n 7) [4].
[13] Ibid.
[14] Ibid [5].
[15] Williams Statement (n 6) [7], annexure KW-3.
[16] Ibid annexure KW-3.
[17] Ibid [8], annexure KW-4.
[18] Ibid [9], annexure KW-5.
[19] Ibid [10], annexure KW-6.
[20] Ibid [11], annexure KW-7.
[21] Ibid [12], annexure KW-8.
[22] Ibid [13], annexure KW-9.
[23] Digital Hearing Book Part 2, 19 (DHB Part 2).
[24] Ibid 20.
[25] Ibid 26–7.
[26] (2011) 203 IR 1, 5 [13].
[27] Ibid 6 [13].
[28] (2018) 273 IR 156, 165 [38] (emphasis in original).
[29] Ibid 165 [39].
[30] Ibid.
[31] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[32] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[33] Form F2 – Unfair Dismissal Application.
[34] Williams Statement (n 6) [10], annexure KW-6.
[35] Ibid [12] – [13], annexures KW-8 and KW-9.
[36] DHB Part 2 (n 23) 26–7.
[37] Williams Statement (n 6) annexure KW-11.
[38] Ibid annexure KW-14.
[39] Ibid.
[40] Ibid annexure KW-16.
[41] Ibid annexure KW-17.
[42] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[43] Williams Statement (n 6) [9], annexures KW-5, KW-8 and KW-9.
[44] Ibid annexures KW-5 and KW-17.
[45] Caire v Imscan Technologies[2013] FWC 3154, [16].
[46] (1997) 140 IR 1.
[47] Ibid 11.
[48] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[49] (2022) 96 ALJR 89.
[50] (2022) 96 ALJR 144.
[51] [2015] FWC 8885, [29].
[52] [2023] FWC 1003.
[53] Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226; Underwood v Terra Firma Pty Ltd [2015] FWCFB 3435, [15]–[16]; Reeve v PKF (Gold Coast) HR Services Pty Ltd[2023] FWC 488, [61].
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