Garo Benkowics v Qantas Airways Ltd
[2022] FWC 1122
•26 MAY 2022
| [2022] FWC 1122 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Garo Benkowics
v
Qantas Airways Ltd
(C2022/995)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 26 MAY 2022 |
Application to deal with contraventions involving dismissal - request for an extension of time – alleged representative error – no witness statement filed by applicant – applicant did not attend hearing - finding as to representative error not available on the evidence – no exceptional circumstances - application dismissed
On 7 February 2022, Mr Garo Benkowics (Applicant) filed a general protections involving dismissal application (under s.365 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission). The Applicant alleges that he was dismissed by Qantas Airways Ltd (Respondent) in contravention of Part 3-1 of the Act because of his medical condition and/or disability.
In denying any alleged contravention of the Act, the Respondent says that the Applicant was dismissed as a result of his failure to adhere to the Respondent’s Covid-19 Vaccination Policy (Covid policy) and Group Standards of Conduct Policy (Conduct policy).[1]
Section 366(1) of the Act 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 Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances (s.366(2) of the Act). The parties are not in dispute that the Applicant’s date of dismissal was 14 January 2022. Given that the Applicant filed his Application on 7 February 2022, it has been filed three days outside of the 21-day time limit.
At the hearing, Mr Robert Grealy, Special Counsel, Australian Law Partners, appeared with permission for the Applicant, and Ms Jessica Farah, Head of Industrial Relations, appeared for the Respondent. Notably, the Applicant himself did not appear at the hearing, and did not provide a witness statement in support of his request for an extension of time.
The Applicant relies upon his submissions dated 31 March 2022, and the witness statement of Mr Grealy dated 31 March 2022. The Respondent relies upon their submissions dated 13 April 2022, and the witness statement of Mr Alastair John Earle, Manager Supply Chain Operations and Logistics, dated 11 April 2022.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[2]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[3]
(emphasis added)
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters.[4]
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[5]
Reason for delay
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[6] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[8]
In summary, the Applicant submits that the reason for delay was due to representational error. According to the Applicant, prior to filing his Application, he had been represented by another paid agent, Supportah, pursuant to his membership or association with an organisation called the “Red Union”.
In Mr Grealy’s witness statement, he says that the Applicant continued to work with the Red Union, and provided instructions for Supportah to file his Application within the statutory timeframe. Mr Grealy further says that, on 4 February 2022, the Applicant contacted the Red Union as he had not received confirmation that his Application had been filed. Subsequently, in the late afternoon of 4 February 2022, Supportah advised the Applicant that, due to a recent policy change, they were no longer representing employees who were dismissed under circumstances such as his. The Applicant immediately engaged alternative representation, being Australian Law Partners, who lodged his Application (three days later) on 7 February 2022.[9]
In support of Mr Grealy’s contentions, the Applicant tendered forwarded email correspondence dated 4 February 2022 to Mr Grealy which (in part) reads: “Below is proof if it helps of email conversation today... Even though they mention they forwarded the document it was already sent at the beginning of the week”. [10] The tendered email correspondence also included an email dated 31 January 2022 from “Supportah E-Documents Team” containing an “open the document” link. This link was inaccessible to the Commission, and the alleged material contained in the link was not filed with the Commission. The subsequent email to the Applicant from a Red Union representative acknowledged receipt of the Applicant’s “forwarded messages of the Supportah E-Documents” and asked whether the Applicant had “some questions about these documents”. The Applicant replied on 4 February 2022 seeking confirmation that a general protections application had been filed on his behalf, and was told that “Whilst Supportah do not specifically notify members when the filing is made, once you have filled out and signed your forms, giving authority for them to file the case for you, you can take this as an indication that it would have been filed, as it is actioned once receiving authority. They will contact you directly about a week before your Fair Work case to discuss this further with you.”[11]
The Applicant also tendered an email chain dated 4 February 2022 between the Red Union and himself, which states that the Applicant had received a call from Supportah on the same day explaining that they were no longer lodging a general protections claim on his behalf.[12]
Relying on authorities,[13] the Applicant argued that the reason for delay was “exceptional” within the meaning of the Act as the delay eventuated from a third-party representative’s late notification that they no longer intended on filing the Applicant’s Application, and that the Applicant thereafter made all reasonable attempts to rectify the actions of this third-party by contacting Australian Law Partners on the same day (being Friday, 4 February 2022).[14]
In response, the Respondent submits that there are two distinguishable kinds of representational error,[15] being:
a.where there is representative error and the Applicant is blameless; and
b.where there may be representative error, but the Applicant’s conduct contributed to the delay.[16]
The Respondent submitted that the Applicant’s reason for delay falls within the second category (category b.), and is not an acceptable reason for delay.[17] In making this contention, the Respondent referred to the Applicant’s submissions and evidence, noting:
a.that the Applicant had not provided any evidence demonstrating that express instructions to his former representative (Supportah) had been given to file a general protections application;
b.whilst the Applicant claims to have provided these instructions to Supportah, the Applicant failed to provide any evidence of Supportah advising the Applicant that it would lodge the Application on his behalf;
c.the evidence filed by the Applicant depicted that Supportah only advised the Applicant that it would not file the Application;
d.it is apparent from the evidence filed from the Applicant, namely the appended email from Supportah stating that they “do not specifically notify members when the filing is made” that Supportah had not expressly confirmed that they had filed a general protections application for the Applicant.[18]
The Respondent argued that these facts distinguished the Applicant’s case from the authorities relied upon by the Applicant[19] as the Applicant had not demonstrated that clear instructions had been given to Supportah to enable them to file a general protections application on his behalf within the statutory timeframe, nor had the Applicant demonstrated that a filing error had occurred.[20]
In support of its position, the Respondent referred to McLennan v Northern Territory Stolen Generations Aboriginal Corporation[21] (McLennan), wherein an acceptable reason for delay was not found as the Applicant “was not diligent in confirming the progress of the matter.”[22] In making that decision, Commissioner Spencer had regard to the lack of evidence demonstrating that the Applicant had given clear instructions to their representative to lodge their application with the Commission, and the lack of evidence demonstrating that the Applicant took sufficient steps to enquire as to the status of their claim.[23]
The Respondent submitted that the Applicant’s conduct (or lack thereof) resembled the facts of McLennan, and/or contributed to the delay because:
a.the Applicant did not seek confirmation that Supportah had filed a general protections application prior to the final day of the 21-day statutory timeframe;
b.the Applicant had not provided evidence that he had expressly instructed Supportah to file a general protections claim on his behalf;
c.the Applicant was aware that a 21-day time limit applied for filing the Application;
d.notwithstanding the fact that prior to the 21-day time period expiring the Applicant was aware that Supportah would not be filing a general protections application on his behalf, the Applicant elected to wait a further three days after the time limit had expired to file the Application.[24]
Reliance on representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).[25] In Davidson v Aboriginal Islander Child Care Agency,[26] a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”
(emphasis added)
The principles espoused in Clark have been considered and applied in various decisions of this Commission.[27] I equally rely upon those principles in this decision.
As demonstrated in Clark, the conduct of the Applicant is a central consideration in determining the existence of representative error. In this regard, I note that the Applicant has failed to demonstrate that clear instructions were given to his former representative to lodge an application on his behalf. In this regard, the Applicant has merely appended a link (which is unable to be accessed by the Commission) which is said to contain these instructions. Notably, the email containing the link is sent from “Supportah E-Documents Team” to the Applicant and is dated 31 January 2022 (four days prior to the cessation of the statutory timeframe to file an application under s.365 of the Act). The Applicant did not provide a witness statement, nor did he appear (attend) at the Hearing. The written and oral statements of the Applicant’s representative (Mr Grealy) simply retort that he verily believed that the Applicant provided instructions to the Red Union to prepare and lodge a general protections application involving dismissal.[28] Further, the email chain between Supportah and the Applicant stating that members are not informed “when the filing is made” does not expressly confirm that Supportah had received instructions nor filed a general protections application involving dismissal for the Applicant. As such, in my view, the evidence filed by the Applicant (or lack thereof) fails to provide a reasonable or credible basis to support the Applicant claims as to representative error (i.e. the evidence fails to identify that the Applicant provided sufficient instructions to Supportah so as to enable them to file a general protections application on his behalf within the statutory timeframe).
Moreover, the email correspondence filed by the Applicant, wherein he enquires about the status of his case, is dated 4 February 2022, the final date for a general protections involving dismissal application to be filed pursuant to the statutory deadline. In the context of limited evidence supporting his assertions that sufficient instructions were provided to Supportah to file his general protections application, such evidence does not assist the Applicant in showing that he was blameless and took active steps, during and prior to the end of the statutory timeframe, to have his Application lodged within time.
In view of the foregoing, I find that there is insubstantial evidence to support the Applicant’s assertions that his Application was filed out of time due to representative error (in the Clark sense). As such, I conclude that the Applicant’s reasons for delay in this matter do not weigh in favour of a finding as to the existence of exceptional circumstances, rather they weigh against such a finding.
Action taken by the Applicant to dispute his dismissal[29]
The Respondent submits that the Applicant did not take any action to dispute his dismissal prior to filing his Application. According to the Respondent, upon terminating the Applicant’s employment, he was notified that he could internally appeal this decision pursuant to the Qantas Group Internal Appeal Procedure. Despite this, the Applicant failed to make an internal appeal.[30]
At the hearing, the Applicant pointed out that whilst he was still employed he opposed the Respondent’s disciplinary procedure based upon the Respondent’s Covid and Conduct policies. The Applicant submitted that his clear opposition to these policies, and the disciplinary action that ensued, ought to have forewarned the Respondent that the filing of this Application may be a likely consequence of his dismissal.
I asked Mr Grealy during the Hearing as to why the Applicant did not take up the opportunity to lodge an internal appeal against his dismissal. In this regard, I refer to the following excerpt of the transcript:
“THE DEPUTY PRESIDENT: All right. Is there anything to be said about this issue of not taking up an internal appeal?
MR GREALY: I could - I can provide evidence of what I know of what's happened with the appeal process but it's obviously not in statement form. What has basically occurred with internal appeals and there's been a course of conduct with the respondent in relation to other applicants or other employees, is that the appeal gets dealt with perfunctorily and [is] dismissed, effectively, out of hand. So there was no real purpose to be served in pursuing the appeal because the outcome was a foregone conclusion and that conclusion was that it wouldn't be accepted.”[31]
I do not accept Mr Grealy’s assertion that the Respondent’s internal appeal should be wholly disregarded. There is no evidence before me to support the contention that engagement with the Respondent’s internal appeal process was futile, or a perfunctory process leading to a foregone conclusion. Nor is there any suggestion that the internal appeal process could not have been undertaken at the same time as a general protections application was being prepared and/or lodged.
Given that the Applicant did not take any action to dispute his dismissal, at or after the time of his dismissal and prior to filing his Application, I do not consider that this criterion is one that weighs in favour of a finding as to the existence of exceptional circumstances. I treat it as a neutral consideration.
Prejudice[32]
The next criterion to be considered is any prejudice to the employer, including any prejudice caused by the delay.
The Applicant submitted that as the Application was filed three days (and only one business day), outside of the statutory timeframe, the Respondent is not prejudiced by such a minor delay.[33] The Respondent concurred, but added that this factor should be treated as a neutral consideration as the Respondent should be able to rely on compliance with statutory timeframes, and the mere absence of prejudice to an employer is insufficient to grant an extension of time.[34]
The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor automatically weighing in favour of a finding as to the existence of exceptional circumstances. [35] I therefore treat this criterion as a neutral consideration.
Merits[36]
The principles stated in Kyvelos v Champion Socks Pty Ltd[37] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[38]
In Kornicki v Telstra-Network Technology Group,[39] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[40]
The Applicant filed in-depth submissions regarding the merits of his Application. In summary, the Applicant argues that the Respondent’s Covid and/or Conduct policies were discriminatory (in whole or in part) to the Applicant’s medical condition/disability, political and/or religious stance, and that the disciplinary conduct, show cause meetings, as well as the eventual stand down and dismissal of the Applicant were demonstrable adverse action. Further, the Applicant proffered that the merits were a complicated issue as it related to an issue/s that have not been determined by the Commission or by a court of competent jurisdiction.[41]
The Respondent submitted that the Applicant’s Application was without merit. The Respondent denied that an individual's vaccination status constitutes or can constitute a physical (or mental) disability of any kind. Accordingly, to the extent to which the Applicant submitted that he was subject to disability discrimination by reason of his vaccination status, the Respondent submitted that this claim is entirely misconceived in the context of a general protections’ application.
The Respondent also said that any allegations contained within the Application with respect to:
a)any alleged breach of consultation obligations under an enterprise agreement (or any other alleged breach of obligations arising under an enterprise agreement);
b)alleged unprotected industrial action engaged in by the Respondent;
c)alleged inadequate assessment by the Respondent of risks associated with COVID-19;
d)whether the Policy was a lawful and reasonable direction;
e)whether any government-issued public health order or direction is lawful or valid;
f)any alleged breach of the Applicant's employment contract; and
g)any alleged breaches of work health and safety laws, state and federal anti-discrimination acts, and the Privacy Act 1988 (Cth),
are not within the scope of Part 3-1 of the Act and therefore cannot be determined by the courts in the process of determining the Application.
The merits of the Applicant’s case, by reference to his allegations, and the Respondent’s counter assertions, were not fully tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[42] I consider that the merits of the Application in this matter are a neutral consideration, and weigh them neither for nor against any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[43]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[44] Given that neither party made relevant submissions on this issue (albeit the Respondent acknowledged that this criterion should be a neutral consideration as there are no other employees in a similar position), and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.
Conclusion
I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard:
(a) none of the requisite criteria, considered individually, point towards the existence of exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[45]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances warranting the grant of an extension of time for the Applicant to file his Application.[46] In view of this finding, there is no basis at law for me to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 7 February 2022 is dismissed, and an Order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Robert Grealy, Special Counsel, Australian Law Partners, appeared with permission for the Applicant.
Ms Jessica Farah, Head of Industrial Relations, Qantas Airways Ltd, appeared for the Respondent.
[1] Respondent’s outline of submissions dated 13 April 2022, at [3].
[2] [2011] FWAFB 975.
[3] Ibid.
[4] [2018] FWCFB 901.
[5] Ibid, at [17], [19], [38]-[39].
[6] [2021] FWC 3903.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[8] Ibid, at [40].
[9] Applicant’s outline of submissions dated 31 March 2022, [1]-[4]. Witness Statement of Robert Grealy dated 31 March 2022, at [6]-[10]
[10] Witness Statement of Robert Grealy dated 31 March 2022, appended emails (unmarked).
[11] Ibid.
[12] Ibid.
[13] Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging[2011] FWA 2496; Clark v Ringwood Private Hospital (1997) 74 IR 413, at 418‒420; Dean-Villalobos v QGC Limited T/A QGC[2013] FWC 1537.
[14] Applicant’s outline of submissions dated 31 March 2022, at [1]-[11].
[15] McConnell v A & PM Fornataro T/A Tony's Plumbing Service[2011] FWAFB 466.
[16] Respondent’s outline of submissions dated 13 April 2022, at [16].
[17] Ibid, at [17-18].
[18] Ibid, at [20]
[19] Dean-Villalobos v QGC Limited T/A QGC[2013] FWC 1537; Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging[2011] FWA 2496.
[20] Respondent’s outline of submissions dated 13 April 2022, at [21].
[21] [2012] FWA 3167.
[22] Ibid, at [35]. Respondent’s outline of submissions dated 13 April 2022, at [25].
[23] [2012] FWA 3167, at [33].
[24] Respondent’s outline of submissions dated 13 April 2022, at [22]-[32].
[25] (1997) 74 IR 413.
[26] (1998) 105 IR 1.
[27] See: Officeworks Ltd v Parker[2014] FWCFB 5779, at [14]. See also: Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647.
[28] Witness Statement of Robert Grealy dated 31 March 2022, at [6].
[29] Section 366(2)(b), Fair Work Act 2009.
[30] Respondent’s outline of submissions dated 13 April 2022, at [33]-[37].
[31] Transcript, 20 April 2022, [PN54]-[PN55].
[32] Section 366(2)(c), Fair Work Act 2009.
[33] Applicant’s outline of submissions dated 31 March 2022, at [7]-[9].
[34] Respondent’s outline of submissions dated 13 April 2022, at [38]-[40].
[35] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[36] Section 366(2)(d), Fair Work Act 2009.
[37] (1995) 67 IR 298.
[38] Ibid, at 299 to 300.
[39] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[40] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[41] Transcript of the Hearing of Wednesday, 20 April 2022 [PN46-PN48]. Form F8 dated 7 February 2022.
[42] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[43] Section 366(2)(e), Fair Work Act 2009.
[44] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37].
[45] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[46] Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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