Grant Reeve v Monadelphous Engineering Associates Pty Ltd

[2018] FWC 2219

[2018] FWC 2219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grant Reeve
v
Monadelphous Engineering Associates Pty Ltd
(U2017/13189)

VICE PRESIDENT CATANZARITI ALICE SPRINGS, 18 APRIL 2018

Application for unfair dismissal remedy – extension of time.

[1] Mr Grant Reeve (the Applicant) was employed by Monadelphous Engineering Associates Pty Ltd (the Respondent) until his employment was terminated on 20 November 2017. The Applicant first became aware of his termination in a letter of termination dated 13 November 2017.

[2] On 12 December 2017 an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (‘the Act’) was lodged with the Fair Work Commission (‘the Commission’), by Mr J. Bingham of Unfair Dismissals Direct (‘Dismissals Direct’), on behalf of the Applicant. That application was lodged 1 day outside the 21-day time limit prescribed by s.394(2)(a) of the Act.

[3] On 6 February 2018, the matter was the subject of a telephone conciliation to which I granted permission to appear for both parties in accordance with s.596(2)(a) of the Act.

[4] On 5 March 2018, Ms S. Sarwari appeared for the Applicant, and Ms V. Belot appeared for the Respondent in the hearing for this extension of time application. The factual matters set out above were not a contested issue in these proceedings.

[5] Having considered the factors set out under s.394(3) of the Act, I have determined to refuse the extension of time application, and accordingly, dismiss the Applicant’s unfair dismissal application. For reasons set out below, I am not satisfied that there are exceptional circumstances which warrants the exercise of discretion in favour of granting an extension under s.394(3) of the Act.

Submissions

Applicant’s Unfair Dismissal Application dated 12 December 2017

[6] Under question 1.4 of the Form F2, the Applicant relied on:

‘2. …representative error as constituting exceptional circumstances which ground an extension of time, and submit it would be manifestly unfair on the Applicant should it refuse to exercise its discretion to extend time.’

[7] More specifically, the Applicant referred:

‘5. …to the need for Ms Williamson to travel to the United Kingdom on 6 December 2017 at short notice [which] resulted in a delay in providing documentation to the Applicant to facilitate the preparation and lodgement of his application...’

Applicant’s Outline of Submissions dated 12 February 2018

[8] The Applicant submitted that it would be manifestly unfair to the Applicant, if the Commission was to refuse to exercise its discretion to grant the extension, where there is representative error constituting exceptional circumstances for filing its unfair dismissal application out of time. In making that submission, the Applicant relied on the decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd, where the Full Bench of the Commission (then Fair Work Australia) stated at paragraph [13]:

‘… 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.’ 1

[9] Furthermore, the Applicant submitted that the Applicant was at all relevant times through November and December 2017 seeking to contest the termination. This was evidenced by the Applicant’s contact with Dismissals Direct during that period.

[10] It is submitted that at the very latest, that is, by 12 December 2017 the Applicant had instructed Ms Williamson of Dismissals Direct to provide him with the documentation necessary to facilitate the lodgment of his unfair dismissal application. Had Ms Williamson not been required to travel to the United Kingdom on 7 December 2017 (and noting that she had remained outside Australia since), Ms Williamson would have dealt with the Applicant more promptly, and the Application would not have been lodged out of time. The need for Ms Williamson to travel at short notice was outside the scope of the ordinary course of business and that this resulted in the delay. In making that submission, the Applicant relied upon the decision in Clark v Ringwood Private Hospital 2 where the Full Bench of the Australian Industrial Relations Commission at 418-420 stated:

‘(1) 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

…

(2) 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

…

(3) 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 his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her 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.

(4) Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted…’

Respondent’s Outline of Submissions dated 27 February 2018

[11] The Respondent submitted that the representative error relied on by the Applicant does not constitute ‘exceptional circumstances’ given that the circumstances which gave rise to the representative error were not exceptional, 3 and that the Applicant’s lack of action in connection with that representative error could not warrant the Commission’s exercise of discretion to grant an extension.4

[12] In considering whether to grant an extension on the grounds of representative error, the Respondent submitted that the Commission must consider the factors set out under s.394(3)(a)-(f) of the Act. It is not confined to just the occasion of representative error. 5 The approach that ought to be adopted by the Commission, is that of the decision in McConnell v. A & P M Fornataro.6

[13] The Respondent submitted that based on the materials filed by the Applicant, it is not apparent that the Applicant instructed his representative to lodge the Application by 11 December 2017. Rather, the correspondence from the Applicant to Ms Williamson concerned that of the fees and scope of work required in making the Application. The Applicant had not engaged the representative and so had not instructed Dismissals Direct to lodge the application.

[14] Furthermore, the Applicant’s evidence does not indicate that he was solely reliant on the representation of Dismissals Direct with regards to the application. The evidence also does not lend itself to support the Applicant’s claims that he has attempted to contact Dismissals Direct after Ms Williamson noted the following: ‘Please note time limits and come back to me asap if you are interested in proceeding.’ 7

[15] It was open to the Applicant to take his own active steps to lodge the Application, noting that he had been cautioned as to the strict time limits that applied. That 21-day deadline is also explicitly stated on Dismissals Direct’s website. The representative error as the reason for delay pursuant to s.394(3)(a) in and of itself is not exceptional.

[16] With respect to the other factors that the Commission is to have regard to under s.394(3) of the Act, the Respondent made the following submissions:

•  s.394(3)(b) - the Applicant had been provided 1 weeks’ notice of the dismissal, and thus was aware of the date the dismissal would take effect.

•  s.394(3)(c) - it is not apparent that the Applicant took any steps to dispute the dismissal.

•  s.394(3)(d) - the absence of the Respondent making submissions to indicate prejudice is insufficient to form a basis to which an extension is to be granted. 8

•  s.394(3)(e) - the Commission is not required to undertake a detailed consideration of the substantive merits of the matter. In any event, the application is not a meritorious claim as the dismissal was a genuine redundancy which was no different to mass demobilisation which occurs regularly on projects.

•  s.394(3)(f) - the filing of the Application 1 day out of time, ought to lend itself to being a factor in opposition of the grant of extension.

Consideration

[17] I note that the Applicant was terminated on 20 November 2017, and that the Applicant’s unfair dismissal application was lodged on 12 December 2017. That application was therefore lodged, 1 day outside of the 21-day time limit prescribed by s.394(2)(a) of the Act. As such, the Applicant’s unfair dismissal application can only be pursued if this time limit is extended. 9

[18] Pursuant to s.394(3) of the Act, the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances:

‘s.394—Unfair dismissal

…

(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.’

[19] In assessing whether there are exceptional circumstances, the Commission must have regard to those matters set out in s.394(3)(a)-(f) above. In Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (‘Periklis’), the Full Bench of this Commission stated that:

‘…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.’ 10

[20] While the case of Periklis was determined in the statutory context of s.366(2) of the Act, that being, the Commission’s discretionary power to grant an extension of time for a general protections application lodged outside of the statutorily prescribed period of 21 days in s.366(1)(a), both ss.366(2) and 394(3) operate to confer a discretionary power to grant a further period for a general protections or unfair dismissal application to be made upon the satisfaction that exceptional circumstances exist when certain matters are taken into account. As such, it follows that the approach set out in Periklis is ofparticular guidance in determining whether there are exceptional circumstances which warrant the exercise of discretion to grant an extension of time under s.394(3).

[21] The test of whether ‘exceptional circumstances’ exists is a high hurdle for an applicant seeking an extension. 11 I must be satisfied that the circumstances of this case, when viewed together, can reasonably be seen as out of the ordinary course, unusual, special, or uncommon.12 Accordingly, when giving consideration to the matters required to be taken into account in s.394(3)(a)-(f), I will adopt the meaning extracted in Cheyne Leanne Nulty v Blue Star Group Pty Ltdat [8] of this decision.

Section 394(3)(a) - reason for the delay

[22] Following the decision in Periklis, the Applicant in this case does not need to provide a credible reason for the entirety of the period of delay. 13 Relevantly, if there is no explanation for any part of the delay, this will not lend support to the Commission’s exercise of discretion to grant an extension. Similarly, if a credible explanation for the entirety of the delay is found, this will weigh in favour of the exercise of discretion to grant an extension.

[23] Accordingly, what must be demonstrated under s.394(3)(a) is that there is an acceptable reason for the delay in making the unfair dismissal application. 14 In this case, the Applicant’s unfair dismissal application was lodged on 12 December 2017. As stated earlier, there was no dispute about the fact that the application was made 1 day outside of the 21-day time limit. The Applicant in this case, relies on the representative error of Dismissals Direct, as the reason for that delay:15

‘PN11

The Vice President: The matter listed today as confirmed in correspondence and in the directions hearings is for the issue as to jurisdiction only and the argument by your client is that there is representational error.  Is that a correct summary, Ms Sarwari, as to what is going to be argued today?

PN 12

MS SARWARI:  Yes, Vice President.

…

PN294

MS SARWARI: The first factor to take into account is the reason for the delay. So the applicant submits that the reason for delay in filing his application was representative error as we have discussed today and examined and cross examined through the witnesses.

…

PN309

MS SARWARI:  Furthermore the applicant was blameless in the late filing of his application as it can be inferred, although there was numerous questions raised, that he did all that he reasonable could to ensure that Ms Williamson would prepare and lodge his application.  The applicant submits that it was the single act of Ms Williamson travelling to the United Kingdom as the sole reason for the unfair dismissal remedy being - application being submitted late.  Had Ms Williamson not been required to travel to the United Kingdom, it is submitted that she would have dealt with the application more promptly and it would have been lodged in time.

PN310

MS SARWARI: The applicant respectfully submits that he should not be penalised for the internal procedures of Dismissals Direct and its inability to provide him with information as to time limits, compensation caps, and further information.  Mr Reeve was at all times under the impression that by continuously providing information to Ms Williamson he had engaged their services. 16 (Emphasis added).

[24] In my view, based on the evidence and materials that is before me, the Applicant’s submissions in respect of representative error as the reason for delay must be rejected.

[25] In considering the Applicant’s conduct, 17 the period of delay, and the circumstances leading up to the delay in determining whether the reason relied upon by the Applicant constitutes exceptional circumstances,18 it is clear that from 21 November 2017 (that is the date following the date of dismissal)19 to the date the application was lodged on 12 December 2017, Dismissals Direct had not been retained as the Applicant’s representative for the purposes of lodging the unfair dismissal application:

‘PN107

MS BELOT: So until that point, until 12 December, having reviewed the material that you’ve filed in these proceedings it appears that you weren’t actually a client of Dismissals Direct before 12 December. Is that correct?

MR REEVE: I’m - I wasn’t a client until I’d signed the agreement. Now that was sent out to me by John Bingham and that was in - following telephone conversations.’ (Emphasis added). 20

[26] The signed ‘agreement’ that the Applicant refers to, is that of the terms and conditions of engagement which was requested by the Applicant in an email dated 12 December 2017, which reads as follows:

‘Hi Becca

Please send through the terms and conditions so I can proceed.’ 21 (Emphasis added.)

[27] By way of context, those terms and conditions that the Applicant sought on 12 December 2017, was a precondition to the engagement of Dismissals Direct as representatives for the Applicant. This was made clear, from as early as 6 December 2017 in which Ms Williamson sent an email to the Applicant which stated the following:

‘Hi Grant,

Thank you for your time on the telephone, and for providing me with information concerning the recent termination of your employment.

… [we] are pleased to advise that Unfair Dismissals Direct is able to represent you as your paid agent in an application… in relation to the termination of your employment.

This offer is conditional upon you returning a signed copy of our terms and conditions prior to the date and time printed on the same.

…

If you are happy to proceed with us, please let me know and I will provide our terms and conditions for your review and approval. The deadline for bringing your claim is strictly applied, so please come back to me as soon as possible…’ (Emphasis added). 22

[28] In reply to Ms Williamson’s email of 6 December 2017, the Applicant in an email dated 7 December 2017 advised that he would like to pursue the claim, but had further questions regarding the amount of reimbursement and legal fees of the engagement. Moreover, the Applicant raised a concern about the long-term effects on his work opportunities within the industry. It must be noted, that the 7 December 2017 email was referred to in the Applicant’s submissions and witness statements, but its contents were not annexed or provided to the Commission prior to the hearing. 23 A copy of that email was subsequently tendered by the Applicant, upon the request of the Respondent and the Commission. That email was marked as Exhibit 4 in these proceedings and is relevantly extracted as follows:

‘Hi Becca

I feel I would like to pursue this but have some questions.

Firstly what amount of [reimbursement] can be expected and are the legal fees considered as part of reimbursement?

My fear is of the long term effects to my work [opportunities] within this industry could be detrimental?

Please let me know if it would be better to talk about these issues.’ 24 (Emphasis added.)

[29] On 7 December 2017, Ms Williamson returned to the United Kingdom to attend to a family emergency. On 10 December 2017, Ms Williamson responded to the reimbursement and fee queries raised in the 7 December 2017 email and further addressed the Applicant’s concerns regarding the potentially long-term detrimental impacts of making an unfair dismissal application. More importantly, the Ms Williamson advised as follows:

‘Hi Grant

I’m sorry for the delay in coming back to you. This is a busy time of year for us.

…

Please note time limits and come to me asap if you are interested in proceeding.’ 25 (Emphasis added).

[30] The Applicant did not respond to this email until 12 December 2017. 26 By that time, the application was already 1 day out of time. The Applicant submits that between 10 and 12 December 2017 attempts were made by him to contact Dismissals Direct via its 1300 number. Further, the Applicant claims that he had ‘left several messages’ with the automated voicemail service which operated that 1300 number.27 These are curious submissions which I do not accept. In cross-examination, Ms Williamson confirmed that the Applicant first made contact with Dismissals Direct via its 1300 number which operates as an automated system that records and sends voice messages to Dismissals Direct via email.28 At that time, that is, on 29 November 2017 the Applicant received an immediate response to his call on the following day. In that context, it is therefore difficult to accept that Dismissals Direct did not respond to the Applicant’s calls and voice messages at all between 10 and 12 December 2017.29

[31] The Applicant also submits that the reason for why he chose not to email Ms Williamson at that time was because he believed that the matter was ‘urgent’ and that he ‘needed to talk to someone on the phone’. 30Again, that is a questionable submission. It is difficult to accept how the Applicant could reasonably believe that the only way he could attend to the urgency of his application was only by telephone. There was an established method of email communication he could have reverted to, that is, by emailing Ms Williamson in the same manner as he did on 12 December 2017, or alternatively, by following-up what the Applicant claims to be unanswered voice messages. In the absence of evidence to the contrary and for the reasons set out in this paragraph and the one which precedes it, I have serious doubts as to whether those calls were actually made.

[32] In any event, it remains the case that the Applicant had not retained Dismissals Direct for the purposes of lodging his unfair dismissal application until the 21-day period had already expired on 11 December 2017. The Applicant was well aware from at least 6 December 2017, that in order for Dismissals Direct to ‘proceed’ with the lodgment of his unfair dismissal application, he needed to have, at the very least, signed and returned Dismissals Direct’s terms and conditions of engagement. This is made especially clear from the emails extracted above, in which Ms Williamson expressly stated that Dismissals Direct needed to be engaged before the matter could proceed. 31 The fact that Ms Williamson had to leave Australia to attend to a family emergency on 7 December 2017 did not change the state of affairs in which Ms Williamson left them on 6 December 2017. Had Ms Williamson not have faced extenuating family circumstances and left for the United Kingdom, the Applicant would still have needed to convey the decision to proceed with Dismissals Direct and for the terms and conditions to be signed and returned. To that end, there could be no error on the part of Ms Williamson or Dismissals Direct more broadly. Up until 11 December 2017, Dismissals Direct was no more than a prospective representative who was ‘able’ to represent the Applicant; they were not actually retained or engaged to lodge the Applicant’s unfair dismissal application. Having considered the circumstances of the delay and the conduct of Ms Williamson, I find that no error had been made by her or Dismissals Direct as prospective representatives. Ms Williamson was responding to emails while she was overseas and was continuing to prompt the Applicant for a timely response in respect of a decision to proceed with Dismissals Direct.

[33] Having also considered the conduct of the Applicant, the only error that is disclosed from the evidence is that of the Applicant’s own indecision and inaction to affect the retention of Dismissals Direct’s services. In that regard, the Applicant cannot be said to be ‘blameless’ 32 for the delay. The Applicant knew of the express requirement for Dismissals Direct to be retained before his unfair dismissal application could be progressed any further. This was conveyed to him prior to Ms Williamson’s departure for the United Kingdom.

[34] Given that the explanation which is solely relied upon is that of representative error and no error of that kind has been found in this case, this is a factor which weighs against a finding that there are exceptional circumstances in favour of an extension pursuant to s.394(3)(a).

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[35] The Applicant was notified of his dismissal in a letter of termination dated 13 November 2017. In that letter, the Applicant was informed that the termination would take effect on 20 November 2017. As the Applicant was aware of the dismissal prior to the date in which it took effect, he had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

[36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 33

[37] The Applicant submits that he was a member of a union at the time of dismissal, and that he had sought to contact the union for assistance regarding the termination of his employment. 34 In the hearing, the Respondent contended that the Applicant mischaracterised the steps he took to dispute the dismissal, because those actions relate to the Applicant’s Living Away from Home Allowance, and not with respect to the termination. The Respondent refers to a chronology of events that was prepared by the Applicant and provided to Dismissals Direct in an email dated 4 December 2017. That email was referred to in the Applicant’s submissions but subsequently omitted from the Applicant’s evidentiary case. As such, I called upon that evidence in the hearing and relevantly, the chronology confirms that although the Applicant did seek the assistance of the union regarding his termination, the Applicant did not in fact take any action to dispute the termination:

‘17/11/2017 Told in morning that I would be taken by Richard Green to see IR Manager Steve Rooke around lunch time. Came to see before lunch told to have lunch first. Saw Craig Quirk after lunch he said to wait around a bit for Richard. An hour later Craig come back and said Richard was busy at the Supervisors residential camp. He also said that I would be paid my exit expenses as per the EBA. I took a Union representative Darren with us and we were meant to get the main Union delegate on a phone line when we were with Steve Rooke. The Union delegate had emailed Steve Rooke on my behalf but had no response. The Union rep had told me not to talk about any issues with regards unfair dismissal. We forgot to arrange the phone link so it was myself, Darren, Craig and Steve Rooke.’ 35(Emphasis added).

[38] On that basis, I find that this is a factor which weighs against a finding that exceptional circumstances exist.

Section 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[39] Prejudice to the employer will weigh against granting an extension of time. 36 However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.37

[40] The Respondent does not contend that the 1 day delay has resulted in prejudice on its part. As such, I consider that this is a neutral factor in the consideration of whether exceptional circumstances exist.

Section 394(3)(e) - the merits of the application

[41] The Commission ‘should not embark on a detailed consideration of the substantive case’ 38 for the purpose of determining whether to grant an extension of time to the Applicant to make their application.

[42] The hearing on 6 March 2018 did not relate to the merits of the Applicant’s unfair dismissal application and concerned only the application for an extension of time.

[43] The Applicant maintains that he was unfairly dismissed because his termination was not based upon a genuine redundancy. The Applicant has not provided the grounds for which it seeks to make that claim. It is further contended, that if the termination was a genuine redundancy, the Respondent failed to consult the Applicant of the redundancy as per clause 24 of the Monadelphous Engineering Associates Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Agreement). In the hearing, the Respondent disputed this claim. 39

[44] On the Respondent’s part, it contends that the Applicant was validly terminated by way of redundancy because it was affected as part of a mass project demobilisation. Relevantly, the Respondent points out that the Applicant was 1 of 280 other employees who were all facing the same set of circumstances. 40 On that point, I find that if the matter was to proceed to a substantive hearing, it may be difficult for the Applicant to maintain that his termination, and indeed the termination of 280 other employees, was not the result of changes in the Respondent’s operational requirements.

[45] As these substantive matters are key issues in dispute which have not had the benefit of a hearing, I am unable to make a final assessment of the merits. On that basis, I consider this criterion to be neutral.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[46] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 41 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[47] The Applicant submits that because the Respondent is not subject to any other unfair dismissal application at this point in time, that this should be a factor which weighs in support of the Commission granting an extension of time. This is quite the contrary. If weight was to be given to this point, it would lend support to the view that in fact, 280 other employees as well as the union have not sought to dispute the terminations. As such, I am satisfied that this is a factor which weighs against a finding that exceptional circumstances exist.

Conclusion

[48] Having taken into account the matters set out in s.394(3)(a)-(f) of the Act, I am not satisfied that there are exceptional circumstances warranting an extension of time for the Applicant’s unfair dismissal application to be made. The fact that Ms Williamson of Dismissals Direct had to travel to the United Kingdom on 7 December 2017 is not a representative error supporting a credible reason for delay, as she had remained in contact with the Applicant. The Applicant had ample time to sign and return the terms and conditions of engagement, which from as early as 6 December 2017, was communicated to him as a precondition to the lodgment of his unfair dismissal application. Those circumstances were not out of the ordinary course, unusual, special or uncommon.

[49] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the unfair dismissal application being made out of time is upheld and the substantive application is dismissed.

VICE PRESIDENT

Appearances:

Ms S. Sarwari for the Applicant

Ms V. Belot for the Respondent

Hearing details:

10.30am

6 March 2018

Sydney, with video link to Darwin

Printed by authority of the Commonwealth Government Printer

<PR602106>

 1   [2011] FWAFB 975.

 2 (1997) 74 IR 413, (‘Clark v Ringwood’).

 3   The Respondent also noted that there were no ‘exceptional circumstances’ as per Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

 4   Officeworks Ltd v David Parker[2014] FWAFB 5779.

 5 (1997) 74 IR 413.

 6   [2011] FWAFB 466 at [35] applying Clark v Ringwood which has been extracted at [8] of this decision.

 7   Witness Statement of Mr G. Reeve dated 12 February 2018, Annexure F.

 8   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

 9   Fair Work Act 2009 (Cth) s.394(2)(b).

 10   [2018] FWCFB 901 at [38].

 11   Ibid at [14] citing Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 12   Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 13   [2018] FWCFB 901 at [30]-[48].

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 15   See also the Applicant’s Unfair Dismissal Application and Outline of Submissions at [6]-[10] of this decision.

 16   Transcript of Proceedings 6 March 2018, Applicant’s Oral Submissions.

 17   Clark v Ringwood, see extracted passage at [10] of this decision.

 18   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 19   Acts Interpretation Act 1901 (Cth) s.36(1), Fair Work Act 2009 (Cth) s.40A.

 20   Transcript of Proceedings 6 March 2018, cross-examination of the Applicant, by Ms V. Belot for the Respondent.

 21   Above n 7, Annexure G.

 22   Ibid Annexure E; see also Witness Statement of Ms R. Williamson dated 12 February 2018, Annexure E.

 23   The Applicant claimed that it believed the contents of the email was privileged, but having realised Dismissals Direct is not a law firm, those concerns were not pressed.

 24   Email of Mr Reeve to Ms R. Williamson dated 7 December 2017, marked as Exhibit 4 in the proceedings on 6 March 2018.

 25   Above n 7.

 26   See [26] of this decision.

 27   Transcript of Proceedings 6 March 2018, cross-examination of Mr G. Reeve, PN122-124 and PN239-244.

 28   Ibid, PN45-46.

 29   Ibid, PN150.

 30   Ibid, PN239.

 31   See [27] of this decision.

 32   Transcript of Proceedings 6 March 2018, PN309.

 33   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 34   Transcript of Proceedings 6 March 2018, PN114 and PN228-234.

 35   Email of Mr G. Reeve to Ms R. Williamson dated 4 December 2017, marked as Exhibit 3 in the proceedings on 6 March 2018.

 36   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 37   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 38   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 39   Transcript of Proceedings 6 March 2018, PN334.

 40   Ibid.

 41   [2016] FWCFB 6963.