Gillian Hetherington v The Anglican School Googong
[2024] FWC 1517
•12 JUNE 2024
| [2024] FWC 1517 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gillian Hetherington
v
The Anglican School Googong
(U2024/3294)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 12 JUNE 2024 |
Application for an unfair dismissal remedy – application filed 2 days out of time – no exceptional circumstances – application dismissed
Introduction
On 21 March 2024, at 10:06PM AEDT NSW, Ms Gillian Hetherington (Applicant) filed an unfair dismissal (Application) under s.394(1) of the Fair Work Act 2009 (Act). The Applicant alleges that she was unfairly dismissed by The Anglican School Googong (Respondent) on 27 February 2024.
Section 394(3) of the Act provides that an application made under s.394 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”).[1]
It is not in dispute between the parties that the employment relationship between the Applicant and the Respondent came to an end on 27 February 2024. It is also not in dispute that the Applicant was aware of the cessation of her employment with the Respondent at this time. I equally make this finding.
Given that the Applicant has filed her Application on 21 March 2024, the Application has been filed 2 days outside of (or beyond) the 21 day time limit under s.394(2)(a) of the Act. The Applicant should have filed her Application on or before 19 March 2024 for it to have been filed within the requisite 21 day time period.
The matter was allocated to my Chambers and Directions were issued to the parties programming the request for an extension of time to hearing. At the hearing, Applicant appeared for herself, and Mr Dan Kynaston, Partner, King & Wood Mallesons, appeared with permission for the Respondent.[2]
Legal principles
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”, 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) [or s.394(2)(a)] is not an exceptional circumstance…”[3]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], 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) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[4]
In Mohammed Ayub v NSW Trains[5], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ (as required under s.394(3) of the Act) requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne
v Abel[6]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[7] (my emphasis)
Reason for delay[8]
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[9] (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.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[11] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[12]
The Applicant’s reasons for delay are set in the written submissions she filed on 1 May 2023, which (relevantly) read:
“Please find information below regarding Direction 1 issued 16 April 2024 in respect to the out of time application. I was unfamiliar with the process associated with an out of time application and the depth of information required, mistaking the submission already forwarded as the required response.
1) I acknowledge that the application submitted to the Fair Work Commission on 21/3/2024 was two days past the due date.
2) My resignation letter to the Anglican School Googong was emailed to the Principal Dr Clayton Massey on 30/1/2024 at 7:10am
3) An acknowledgement of receipt of the resignation letter was emailed to me by the school on 3/2/2024 at 4:36 pm – almost two whole days later.
4) Whilst having consulted the Fair Work website extensively, the issues of constructive dismissal, forced dismissal, unfair dismissal, general protections and their eligibility and applicability to my circumstances have taken some time to navigate.
5) There has been some very brief initial consultation with a legal representative, however, in a short verbal conversation with the legal representative I miscommunicated the effective date of the resignation as 30/1/24, (mixing up the date of communication and the date of resignation) and therefore calculated 21/3/2024 as the date the application was due to be submitted to the Fair Work Commission. I acknowledge this is wholly my miscalculation.
6) There is no prejudice against the Respondent in a late filing of the application, the Respondent (school) having significant financial resources and backing of the Canberra-Goulburn Diocese at its disposal. In addition, I would imagine that the Respondent would like to ensure that a fair and just process has been undertaken.
7) Subsequent to my resignation effective 27/2/2024 I have had to relocate from the Canberra area to Sydney to take up new employment. The chances of obtaining employment in Canberra in a school is virtually non-existent as Anglican schools in the region are governed by the Anglican Diocese of Canberra-Goulburn. Other private schools, such as Catholic, whilst not associated with Anglican Diocese of Canberra-Goulburn are highly unlikely to employ a non-Catholic to a similar position as the one I held at The Anglican School Googong. Moving and commencing employment in a new position are highly time consuming as well as stressful life events impacting my ability to correctly calculate the required due date.
8) After almost a year of absence due to psychosocial hazards in the workplace, the ability to think clearly and decide whether or not to pursue an Unfair Dismissal claim has been difficult. There has been significant stress and pressure applied by the Respondent to me personally, as the evidence already submitted bears witness to. The actions of the Respondent have disempowered me, caused significant personal anguish, necessitating medical treatment and leading to an extended absence from work. Medical certificates attached.
9) My application holds significant merit given that the Respondent has chosen to construct a narrative around my absence from work related to an alleged plan, on my part, to avoid disciplinary action. I strongly contend that this is untrue, having submitted evidence that it was my intention to return to work. In addition, in almost 30 years of employment I have not been the subject of a complaint, received a warning or have disciplinary actions applied.
10) That my application is heard and proceeding to a hearing would ensure a just, considered and equitable outcome.”[13]
In support of her asserted reasons for delay, the Applicant has provided various medical certificates and assessments (attached to her submissions filed 1 May 2024).[14]
The Respondent’s submissions as to the Applicant’s reasons for delay, read:
“9. The information in the Applicant’s written submissions is consistent with the earlier statement made by the Applicant in an e-mail to the Associate to Deputy President Easton on 15 April 2024 that “[t]he late filing was a miscalculation on my behalf”.
10. Accordingly, the only reason for the delay identified by the Applicant is that she miscalculated the date that was 21 days after the date the dismissal took effect. A miscalculation of this time period does not, and cannot, constitute exceptional circumstances. The Respondent notes that the Applicant claims to have “consulted the Fair Work website extensively”, and to have also had a brief consultation with a legal representative. The Applicant does not claim that she was unaware of the 21 day time limit to file her application. The Applicant does not claim that there were other circumstances that prevented her from complying with the 21 day time limit to file her application. The Applicant’s explanation for the miscalculation (i.e. mixing up the earlier date of 30 January 2024 when notice of resignation was provided and the later date of 27 February 2024 when the resignation became effective) makes no sense whatsoever.
11. The Respondent further notes that the termination of the Applicant’s employment occurred because she submitted a letter of resignation to the Respondent on 30 January 2024. A copy of that letter of resignation is attached to the Applicant’s Form F2. The first sentence of the resignation letter states “… I submit my resignation from my position at The Anglican School Googong effective 27th February 2024, providing the requisite four term weeks’ notice”. The Applicant chose the date on which she submitted the notice of resignation, and (by extension) the date that the resignation became effective. The Applicant had a full 21 days from the date of termination (a date that she herself had provided four weeks’ notice of to the Respondent) to file her unfair dismissal application, but waited until the last day of the (apparently miscalculated) 21 day time period to file it.
12. In relation to the medical certificates submitted by the Applicant in support of her extension of time application, the Respondent notes:
(a) The Applicant does not claim in her written submission that she had a medical condition which impacted on her capacity to file the Form F2 within the 21 day time limit; and
(b) The medical certificates do not state that the Applicant has a medical condition which would impact on her capacity to file the Form F2 within the 21 day time limit. The most recent medical certificate states that the Applicant is fit for normal duties from 11 December 2023 and that “from a physical, intellectual and psychological perspective, I am confident that she can fulfill a teaching role with a new employer”.”[15]
In Bianco Mamo, Deputy President Easton outlined issues associated with mental illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21-day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
[25] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”[16]
(footnotes omitted)
I concur with and adopt the foregoing principles.[17]
In my view, the medical evidence relied upon by the Applicant (to justify her delay, or otherwise explain it) is deficient (as identified by the Respondent),[18] such that it does not explain or support her reasons for delay.[19]
I equally do not accept that the other reasons for delay provided by the Applicant (miscalculation, miscommunication with a legal representative, partial reliance upon a legal representative, unfamiliarity with the jurisdiction, taking time to navigate her position or options, and alike) are extraordinary or exceptional. This is especially so in circumstances where the Applicant knew as early as 30 January 2024 (when she tendered her resignation) that her employment would be coming to an end on 27 February 2024. It is hardly acceptable to essentially do nothing (or not much at all) from 30 January 2024, if one genuinely considers that they have been ‘forced’ to resign from that date.
I find that the Applicant’s reasons for delay are not credible. Nor are they supported by “probative” evidence confirming that she was ‘prevented’ (or unable) to file her Application within 21 days of her resignation taking effect (on 27 February 2024). I find that the reasons for delay relied upon by the Applicant simply do not, or do not sufficiently and specifically, explain her two day delay in the filing of her Application. I conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Whether the Applicant become aware of the dismissal after it had taken effect[20]
The Applicant was aware that her employment came to an end on 27 February 2024, as per her resignation letter dated 30 January 2024 (written by her own hand so to speak). I consider this criterion to be a factor that weighs neither for, nor against, a finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[21]
The Applicant at no time sought to withdraw or otherwise retract her resignation prior to it taking effect on 27 February 2024. Nor did she seek to dispute her dismissal prior to 27 February 2024. I consider this criterion to weigh against any finding as to the existence of exceptional circumstances in this case.
Prejudice[22]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 2 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[23] In this case, I treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances in this case.
Merits[24]
The principles stated Kyvelos v Champion Socks Pty Ltd[25] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth noting and 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 …”.[26]
In Kornicki v Telstra-Network Technology Group,[27] 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.”
Despite her written resignation, the Applicant says that she was “dismissed”, and that this dismissal was unfair.[28]
The Respondent denies the Applicant’s assertion as to dismissal, and says that the Applicant voluntarily resigned from her employment.[29]
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Further, the fact that a case may be said to be arguable, does not mean that it has reasonable prospects of success, or is unequivocally meritorious.
The Applicant’s written resignation in this case gave four weeks’ notice. At no time prior to it taking effect on 27 February 2024 did the Applicant seek to withdraw her resignation. The Applicant has not attended the workplace since around February 2023. She filed a bullying complaint with the Commission in April 2023, but discontinued it on 10 July 2023. The events referred to by the Applicant in her resignation letter are not contemporaneous with the date of her resignation letter, being 30 January 2024. Further, the contents of, or details contained within, the resignation letter highlight that the Applicant has thought long and hard about her decision to resign. It was not a spur of the moment, or heat of the moment, decision (resignation). None of the facts support the Applicant’s contention that she was dismissed because she was forced, at the time she wrote and submitted her resignation, to do so. The purported course of conduct said to have been engaged in by the Respondent does not, on the evidence before me, meet the requirements of s.386(1)(b) of the Act, noting the Full Bench decision in Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941, at [47]. As at 30 January 2024, if the Applicant did not resign, she would simply have stayed on leave like she had been doing for almost a year already. Her choice to resign on 30 January 2024, on the current state of the evidence before me, was hers, and hers alone.
In summary, a final conclusion as to whether or not the Applicant’s resignation is a dismissal within the meaning of s.386(1)(b) of the Act would require further scrutiny in a contested hearing, which is completely unwarranted in an out of time (or other interlocutory) hearing (and has not occurred in this case before me).[30] That said, the merits of the Applicant’s case on the materials before me is weak. I therefore treat merits of the Application in this case as weighing against any finding as to the existence of exceptional circumstances.[31]
Fairness as between the Applicant and other persons in a similar position[32]
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 are the same, or similar, characteristics and/or circumstances.[33] Neither party made relevant or substantive submissions in respect of this criteria.
I am not aware of any employees in a similar position to the Applicant, or cases, from a true comparator perspective, where there are the same, or similar, characteristics and/or circumstances as those of the Applicant. Further, even having regard to the previous out of time decisions that I am aware of, none of those cases are on all fours with the specific facts and circumstances of this case. I therefore treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
a)three of the criteria, considered individually, point towards there being no exceptional circumstances;
b)none of the criteria, considered individually, point towards there being exceptional circumstances; and
c)considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. three criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining three criteria are neutral).[34]
On the basis of my reasons (and findings) set out in this decision, and having regard to the evidence and the submissions of the parties before me, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file her Application.[35] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Gillian Hetherington, appeared for herself.
Mr Dan Kynaston, Partner, King & Wood Mallesons, appeared with permission for the Respondent.
[1] See ss.394 of the Fair Work Act 2009 (Act).
[2] See Respondent’s Form F53 (filed 14 May 2024), and written submissions on permission to appear (dated 14 May 2024).
[3] [2011] FWAFB 975.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[5] [2016] FWCFB 5500.
[6] (1964) 38 ALJR 293.
[7] Ibid, at 301.
[8] Section 394(3)(a) of the Act.
[9] [2021] FWC 3903.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[11] Ibid, at [40].
[12] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[13] See also Transcript, PN28-PN37, and PN42-PN51.
[14] Ibid.
[15] Respondent’s written submissions, 14 May 2024, at [9]-[12]. See also Transcript, PN54-PN57.
[16] [2021] FWC 3903, at [19]-[25].
[17] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[18] Respondent’s written submissions, 14 May 2024, at [12].
[19] Note Applicant’s concession at Transcript, PN39-PN40. See also Transcript, PN64-PN65.
[20] Section 394(3)(b) of the Act.
[21] Section 394(3)(c) of the Act.
[22] Section 394(3)(d) of the Act.
[23] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[24] Section 394(3)(e) of the Act.
[25] (1995) 67 IR 298.
[26] Ibid, at 299 to 300.
[27] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[28] Transcript, PN68-PN80, PN85-PN86.
[29] Transcript, PN58-PN62.
[30] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[31] Transcript, PN213-PN214.
[32] Section 394(3)(f) of the Act.
[33] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[34] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[35] 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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