Hollie Bechaz v Casey Taylor Furniture Pty Ltd
[2022] FWC 2808
•19 OCTOBER 2022
| [2022] FWC 2808 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hollie Bechaz
v
Casey Taylor Furniture Pty Ltd
(U2022/9066)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 19 OCTOBER 2022 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit- no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application made by Ms Hollie Bechaz (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Casey Taylor Furniture Pty Ltd (the Respondent) from 17 January 2022 as a Sales Manager. Her employment with the Respondent was terminated with effect from 16 August 2022. The unfair dismissal application was lodged on 7 September 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 16 August 2022 the period of 21 days ended at midnight on 6 September 2022. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act. The Respondent opposes this request.
The matter was listed for Conference/Hearing on 18 October 2022. The Applicant was directed to file her material in relation to the jurisdictional issue by close of business on 5 October 2022, with which direction the Applicant complied. The Respondent filed its reply material on 12 October 2022 in accordance with the directions issued.
The Applicant appeared on her own behalf at the conference/hearing on 18 October 2022 and gave evidence. The Respondent was represented by Nathaniel Ganeson of HR Legal who was granted permission to appear pursuant to s.596 of the Act. Mr Ganeson called Ms George Howe to give evidence. Ms Howe is the principal of Howe and Russell which is a HR consulting firm that provides outsourced HR services to business predominantly located in North-eastern Victoria and includes the Respondent as a client.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Background and evidence
The Applicant commenced employment with the Respondent on 17 January 2022 in the position of ‘Sales Manager’ in which role she was responsible for staff in the Respondent’s Wangaratta and Wodonga showrooms, rosters and payroll[3].
The Applicant states that she took annual leave from 2 August 2022 and that she received a text message from her employer that same day expressing concern that she had taken leave in circumstances where he was not aware of that leave. The Applicant states that she responded to that text message but received no reply. In her response to the text message of 2 August 2022 the Applicant also states that she had tried to contact her manager prior to going on leave, that her leave had been published for a month, that payroll was complete for the week and that she had handed over payroll tasks whilst on leave to the accountant[4]. The Applicant travelled overseas during her annual leave and says that her phone was stolen while she was on leave, the loss of which she remedied immediately on return from overseas on or about 12 August 2022[5].
On 12 August 2022, Ms Howe wrote[6] to the Applicant on behalf of the Respondent seeking her response in relation to allegations concerning her conduct (the 12 August Letter). Specifically, the 12 August Letter set out the Respondent’s concerns that the Applicant had taken annual leave commencing on 2 August 2022 without obtaining proper approval and that she had failed to undertake an agreed and planned handover of tasks and responsibilities before going on leave. According to Ms Howe, she also spoke by telephone with the Applicant on 12 August 2022 during which conversation she says the Applicant indicated she wanted to resign to which Ms Howe says she replied that the Respondent would accept her resignation if it were put in writing. The Applicant was also told by Ms Howe that while no decision had been taken, the matter was serious and the Respondent was considering the termination of her employment[7]. The Applicant was advised in the 12 August Letter that she was to be stood down on pay with effect from Monday 15 August 2022 pending completion of the investigation. The Applicant was also requested to attend a disciplinary meeting to be held on 16 August 2022 to which meeting she was invited to bring a support person.
On or about 14 August 2022, the Respondent’s owner, Taylor McPhail, noticed a Wangaratta home advertised on realestate.com belonging to the Applicant’s brother and that the home was furnished with a large amount of furniture sourced from the Respondent’s store. This prompted Mr McPhail to check recent store sales, stock and security footage during which review he established that the Applicant had removed several items from the store without authorisation or payment[8].
On 15 August 2022, the Applicant sent a detailed reply via email[9] to the 12 August Letter. The Applicant in her reply set out a series of grievances relating to her employment with the Respondent including with respect to her initial engagement and onboarding, her workload and the incidence and requirement for weekend work. She then sought to explain the process of her taking leave in which she denied that she had ‘fled the country’ or that she had failed to professionally manage a handover of tasks and responsibilities.
At 3.59pm on 15 August 2022, Ms Howe sent a further letter[10] to the Applicant in which additional concerns regarding her conduct were set out (the 15 August Letter). The 15 August Letter outlined concerns that the Applicant had processed a product sale to herself at a significantly discounted price and that she had also been seen on CCTV footage loading store items into a truck at the Respondent’s store. The Applicant was put on notice that a response to the additional allegations would be sought at the meeting scheduled for 16 August 2022.
At 6.36 pm on 15 August 2022, the Applicant sent a detailed email response[11] to the 15 August Letter. In the response the Applicant sought to explain her conduct on several grounds including that she had sought to remove damaged items from the showroom, the Respondent’s lax procedures for managing staff sales and that she had been waiting for her July commission before paying for the removed store items. In her reply, the Applicant also offered to pay for three items that had been removed that she believed were damaged and estimated the value of those items as $1,450.00.
On 16 August 2022, the scheduled disciplinary meeting proceeded at the Respondent’s Wangaratta office with Mr McPhail, Ms Howe and the Applicant present. The Applicant was not accompanied by a support person. Ms Howe states that she asked the Applicant at the commencement of the meeting whether she was comfortable to proceed with the meeting to which she replied she was. She also states that she advised the Applicant that the meeting would be halted at any time if the Applicant felt uncomfortable[12].
Ms Howe states that the Applicant was provided with an opportunity during the meeting to explain her conduct and in doing so Ms Howe says she referred to the CCTV footage and gave the Applicant examples of where the removed goods did not appear to have been damaged as claimed by the Applicant. Following the Applicant’s responses Ms Howe says she informed the Applicant that the allegations were serious and reminded her that the Respondent was considering summarily dismissing her. At that point she asked the Applicant whether she wished to say anything else, in response to which the Applicant produced an envelope of cash and offered to pay for the removed items. Ms Howe states that she and Mr McPhail declined to accept the offered cash and stated that the Respondent would prepare a full list of items taken by the Applicant and then invoice the Applicant for the items[13].
Ms Howe says that at this point in the meeting she and Mr McPhail left the meeting room for approximately 15 minutes to discuss and consider the Applicant’s responses. Ms Howe says she and Mr McPhail decided that the Applicant had not provided any responses that properly explained or justified her removal of a large quantity of items over a period of time and that her description of the items as unsalvageable or unrepairable was inconsistent with the items seen on display in the realestate.com advertisement for the Applicant’s brother’s property. Nor were the Applicant’s comments regarding her planned usage of her commission to pay for the cost of the removed items accepted by the Respondent. That was because the Applicant was not employed in a role that attracted a commission, a claim contested by the Applicant, and consequently had never received a commission during her employment with the Respondent. Mr McPhail and Ms Howe determined that the Applicant should be summarily dismissed but as a gesture of good faith she would receive one week’s pay in lieu of notice[14].
Ms Howe states that following the 15-minute break in the meeting, she and Mr McPhail returned to the meeting room to communicate the dismissal decision to the Applicant. At that point according to Ms Howe, the Applicant had already prepared for the return of company property held by her including keys to the Respondent’s buildings, a laptop and charger. These items were placed on the table ready for return. Ms Howe states that she confirmed the Applicant’s immediate dismissal and advised her that while there was no requirement to make such payment, a week’s pay in lieu of notice would be made as a gesture of good faith. Ms Howe was resolute in her evidence that she stated to the Applicant that she was to be dismissed with immediate effect and produced her handwritten notes of the meeting in support of her evidence. Ms Howe says she also communicated to the Applicant that the Respondent was considering referral of the matter to Wangaratta police to investigate the Applicant’s actions of alleged theft and advised her that a letter confirming the termination of her employment would be sent to her[15].
At 4.52pm on 16 August 2022, a letter[16] confirming the termination of the Applicant’s employment was sent via email to the Applicant (the Letter of Termination). The Letter of Termination was sent to the Applicant’s work email address in error rather than to her personal email address according to Ms Howe. She also properly concedes that the Respondent could not be certain that the Applicant received and read the Letter of Termination. The Applicant claims not to have received the Letter of Termination and further claims that she understood from the meeting of 16 August 2022 that her dismissal would be subject to 7 days’ notice[17].
Despite maintaining that she understood her dismissal took effect on 25 August 2022, the Applicant acknowledged during cross-examination that she had specified the date of termination in her Form F2 as 16 August 2022. She explained the tension between her evidence and the specified date of dismissal in the Form F2 as due to her fixing the date of dismissal as at the meeting date of 16 August 2022 which she says was the last contact she had with her employer prior to her dismissal.
On 16 August 2022, the Respondent reported the events to Wangaratta police. All video footage and a statement of the Respondent’s owners were also provided to the police the following day. An itemised list of goods[18] removed from the store was also prepared which totalled over $12,000. Ms Howe states that after a more recent reconciliation, the alleged theft is now estimated at a value of $18,000 and also understands that a Magistrates Court hearing is scheduled for 14 November 2022 in relation to the alleged theft[19].
On 17 August 2022, the Applicant sent an email[20] to Ms Howe at 1.32pm in which she identified further items that had not been mentioned in the meeting on 16 August 2022 that were in her garage at her home. The Applicant in referring to her conduct and to store items still in her possession, relevantly stated as follows;
“……………..
I acknowledge that my actions in finalising these sales, particularly to family members was not transparent and above board. I should have created invoices prior to my departure and had them paid in full.
……………….
As I thought I had already resigned on the phone on Friday, I brought these items, along with my laptop and keys to our meeting on Tuesday to handover however in light of our discussion and realising the difficulty of this exchange in a car park I felt it would be better to put this information into writing instead and seek your direction.
……………”
The Applicant in her email of 17 August 2022 also sought to make arrangements for the Respondent to recover the items still in her possession and relevantly stated as follows;
“……………..
If you would like to collect these items I am happy to facilitate this. I will be at work during the day but I can safely leave the side garage door unlocked so that you can get access to the roller at the front.
………”[21]
Ms Howe states that the Respondent informed the Wangaratta police of the 17 August 2022 email from the Applicant. The police subsequently conducted a search of the Applicant’s home where these items and other furniture items were retrieved. Ms Howe also states that at the date of preparing her statement the Applicant’s brother remains in possession of items not paid for[22].
The Applicant claims that she did not receive a reply from the Respondent to her 17 August 2022 email[23]. She confirmed that police attempted to retrieve the store items and that the Respondent ultimately sent her an invoice and accepted payment for some of the items with the balance of items returned by her to the Respondent[24]. The Applicant also states that on 19 August 2022 she was referred by Victoria Police to mental health services as they were concerned at a previous attempt she had made to end her life. She says she was subsequently advised by the ‘Victoria Police Mental Health Service’ that they were unable to provide assistance and that she would need to contact her General Practitioner (GP) to discuss a mental health plan. The Applicant also confirmed that she had not applied for employment since her dismissal[25].
During cross examination, the Applicant variously stated that;
she understood she had been dismissed for serious misconduct on 16 August 2022 for taking items from the Respondent’s store without prior payment or authorisation;
she believed that her effective date of dismissal was 25 August 2022 because of the week’s pay in lieu of notice;
the first point at which she offered to pay for the removed store items was during the meeting on 16 August 2022;
she had internet access via a computer and telephone following her dismissal and did not make any immediate inquiries or seek legal advice regarding her dismissal;
she accepted that despite claiming to have been suffering from mental health issues before and following her dismissal, she had been able to attend work normally prior to her dismissal; and
acknowledged that she had not provided any medical evidence to support her claim that her mental health condition prevented her from preparing and filing her application for an unfair dismissal remedy.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 6 September 2022. The delay is the period commencing immediately after that time until 7 September 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[26]
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.[27] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[28].
The Applicant submits that while she was notified of her dismissal verbally at the conclusion of a meeting on 16 August 2022 she was told that this would be subject to a 7-day paid notice period. She further states that she did not receive written notice and it was not made clear to her that her employment had ceased immediately. The Applicant contends that in lieu of any formal confirmation of her dismissal, she believed that her termination took effect 7 days after notification, that date being 25 August 2022.
The Applicant further contends that as a result of alleged bullying in the workplace and the way in which her employment ended, she was experiencing deep depression, anxiety and suicidal ideation. She also submits that she had caring responsibilities for her mother and grandfather in the wake of her dismissal and was unsure of her legal rights. She submits that she made unsuccessful attempts to obtain legal advice from various legal services and it was not until 7 September 2022 that she received a call back from a staff member at Job Watch, who advised her to immediately file her unfair dismissal application.
The Respondent submits that the Applicant was given oral notice of her immediate dismissal on 16 August 2022, and that she was paid one week’s pay in lieu of notice. The Respondent further submits that the Applicant was sent an email with the Letter of Termination on 16 August 2022, although conceding that the Letter of Termination was sent to the Applicant’s work email address in error rather than to her personal email address. The Respondent also refers and relies on the Applicant’s lack of evidence of any medical incapacity, her claims of being a primary carer did not constitute ‘exceptional’ circumstances and that the Applicant chose not to seek legal advice in the period immediately following her dismissal despite being able to do so.
The primary contention of the Applicant is that she was not formally notified of her dismissal as she says she did not receive the Letter of Termination and was unsure of the date her dismissal took effect because of the Respondent’s advice to her in the meeting that she would be paid one week’s pay in lieu of notice. I accept that the Applicant did not receive the Letter of Termination at her personal email address and therefore may not have read it. However, I find the Applicant’s claims of being uncertain about the date of her dismissal unconvincing for the following reasons.
Firstly, Ms Howe gave compelling evidence as to what was said to the Applicant in the 16 August 2022 meeting when confirming the Applicant’s dismissal which took immediate effect. Ms Howe also produced contemporaneous notes of the meeting that supported her version of what was stated to the Applicant in the meeting. That evidence was not challenged by the Applicant. Secondly, the Applicant attended the meeting with a clear expectation of her employment being terminated which is made clear by her bringing company equipment to the meeting which she handed over immediately following advice to her of her dismissal. Thirdly, the Applicant was unable to properly reconcile her statement in her 17 August 2022 email that she thought she had already resigned during a telephone conversation with Ms Howe on 12 August 2022 with her evidence that she thought her employment ended on 25 August 2022. Finally, the Applicant herself identified the date of dismissal in her Form F2 as being 16 August 2022.
It follows from the above that I am satisfied that the Applicant was advised by Ms Howe in the meeting of 16 August 2022 that she was to be dismissed for serious misconduct with immediate effect and that she would receive a week’s pay in lieu of notice. That the Applicant may not have received the Letter of Termination does not disturb my conclusion that the dismissal was clearly communicated to the Applicant during the 16 August 2022 meeting and that it was to take immediate effect.
Turning to the Applicant’s claimed medical conditions, there was a singular lack of evidence going to her various cited medical conditions. Such evidence might include medical reports, counselling service referrals, mental health plans, general practitioner appointments etc. In the absence of such evidence, I approach with caution the Applicant’s claims of being so disabled as to be unable to prepare her unfair dismissal application. Moreover, the Applicant was unable to say what changed in terms of her medical and/or mental capacity between the 6th and 7th August 2022 such that she was able to prepare her statement on that later date, that date being 22 days after her dismissal. It is also telling that despite submitting that she had suffered from anxiety, depression and other conditions for several years, the Applicant conceded that those conditions had not impacted on her work attendance with the Respondent.
With respect to the Applicant’s caring responsibilities there is no evidence before me that those responsibilities were so overwhelming that she was unable to complete her unfair dismissal application during the 21 day period following her dismissal. In fact, when advised by Job Watch on 7 September 2022 that she should immediately file her application, she did so. This strongly indicates to me that the Applicant was quite capable of completing and lodging her unfair dismissal application form in the 21-day period despite the caring responsibilities she may have borne at the time.
Finally, the Applicant claims to have made efforts to obtain legal advice prior to speaking with Job Watch on 7 September 2022. The dates on which she made such efforts were not detailed by the Applicant. In any event, she did concede during cross-examination that in the wake of her dismissal she had access to the internet, could have sought legal advice earlier than she did but did not do so for reasons that were not explained. I am not persuaded that the Applicant’s seemingly lacklustre efforts to obtain legal advice support a finding of exceptional circumstances.
Having regard to the foregoing, I am unable to accept the explanations provided by the Applicant as to having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
For the reasons set out above in dealing with the reason for the delay in the filing of the application I am satisfied that the Applicant was notified of her dismissal on the same day that it took effect on 16 August 2022 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest her dismissal after it took effect on 16 August 2022, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed 1 day outside of the 21-day period. It is not in dispute, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time.
The Applicant advances a number of grounds on which she submits her dismissal was unfair. Those grounds include that;
her dismissal came about because of her highlighting cultural, bullying and payroll issues within the workplace;
her actions in removing store items was not dissimilar to other staff;
the Respondent was untruthful about the nature of her employment and entitlements;
the Respondent’s actions in dismissing her were disproportionate;
the Respondent had advised her on 16 August 2022 that they would send an invoice to finalise the matter;
she was lured to a meeting under false pretences in that she attended the meeting on 16 August 2022 believing she would have an opportunity to talk about the workplace issues she had raised in her responses to the 12 August and 15 August Letters from the Respondent;
her employer owed her money for overtime as well as travel and work related expenses at the time of her dismissal that she had put on her credit cards;
the items removed by her all took place in July 2022, the reconciliation and payment for which would normally take place in August; and
during her employment, the Applicant witnessed serious conduct issues relating to other employees on which no action was taken.
The Respondent submits that the Applicant removed items from the Respondent’s store to a value of approximately $18,000 without prior payment or authorisation, that the matter was reported to and investigated by the Wangaratta Police and is now listed to be dealt with in the Wangaratta magistrates court in November 2022. Further, the process followed by the Respondent in investigating and conducting the disciplinary process afforded the Applicant procedural fairness.
In addressing the merits of her case, the Applicant raises a number of grievances relating to her employment with the Respondent, including unpaid entitlements, bullying and inconsistent treatment of workplace conduct issues. These various complaints and grievances raised, even if valid, do not appear to bare upon the uncontested and central point. That is, the Applicant, who was in a senior position in the organisation, removed furniture and other items to a significant value from the Respondent’s store without prior payment or approval. This included items provided to her brother which according to the Respondent remain unreturned and unpaid for, evidence on which was not rebutted by the Applicant. That matter of alleged theft is now before the courts and the Applicant readily conceded during cross-examination that she had removed store items without prior payment or approval.
As to the suggestion of a lack of procedural fairness being accorded to the Applicant, those submissions have little merit in light of the process followed by the Respondent, the evidence of which is seen in the various correspondence to and from the Applicant.
It is evident to me that while the merits of the Application may turn on contested points of fact, which would need to be tested if an extension of time were granted, the Applicant does not appear to have a strong case based on the material filed. This tells against the granting of an extension of time.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
H Bechaz, Applicant.
N Ganeson for the Respondent.
Hearing details:
2022.
Melbourne (by Microsoft Teams):
October 18.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Exhibit R1, Witness Statement of George Howe, dated 12 October 2022 at [4]-[5]
[4] Exhibit A1, Witness Statement of Hollie Bechaz at [5]-[7]
[5] Ibid at [8]
[6] Exhibit R1, Attachment GH-1, Letter dated 12 August 2022, titled ‘Re: Behavioural Concerns – Invitation to attend formal disciplinary meeting’
[7] Exhibit R1 at [8]
[8] Ibid at [9]
[9] Ibid, Attachment GH-2, Applicant response to 12 August Letter
[10] Exhibit R1, Attachment GH-3, Letter dated 15 August 2022, titled ‘Re: Invitation to attend formal disciplinary meeting – Additional concerns for response’
[11] Exhibit R1, Attachment GH-4, Applicant response to 15 August Letter
[12] Exhibit R1 at [16]-[17]
[13] Ibid at [19]-[20]
[14] Ibid at [21]-[23]
[15] Ibid at [24]-[25], Attachment GH-5
[16] Exhibit R1 at [26]-[28], Attachment GH-6, Letter dated 16 August 2022, titled ‘Termination of your employment’
[17] Exhibit A1 at [17]
[18] Exhibit R1, Attachment GH-7, Itemised list of goods
[19] Exhibit R1 at [30]
[20] Ibid at [31]. Attachment GH-8, Email titled ‘Re: Confidential – Meeting Invitation
[21] Ibid
[22] Exhibit R1 at [34]-[35]
[23] Exhibit A1 at [19]
[24] Ibid at [21]
[25] Ibid at [22]-[24]
[26] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[27] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[28] Ibid at [40].
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