Huria Chapman v Noonkanbah Aboriginal Corporation T/A Kulkarriya Community School
[2023] FWC 573
•14 MARCH 2023
| [2023] FWC 573 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Huria Chapman
v
Noonkanbah Aboriginal Corporation T/A Kulkarriya Community School
(C2022/7851)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 14 MARCH 2023 |
Application to deal with an unlawful termination dispute
The issues
On 28 November 2022, Ms Huria Chapman (the Applicant) applied under s 773 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with an unlawful termination dispute with respect to the purported termination of her employment by the Noonkanbah Aboriginal Corporation T/A Kulkarriya Community School (the Respondent).
The Respondent objected to the application on the basis that the Applicant had filed her application outside of the statutory period set by s 774(1) of the Act. The Applicant had been dismissed on 30 June 2022, therefore making her application 130 days late. The Respondent pressed that granting the Applicant an extension of time in which to make her application was unwarranted because there were no exceptional circumstances explaining why it was filed late.
For the following reasons, I have dismissed the Applicant’s application. Briefly stated, exceptional circumstances were not established, and in all the circumstances I did not consider it fair or equitable to grant the extension.
Background
The broader context and events leading to the Applicant making this application were described by the Applicant in her Form F9 and witness statement, and by the Respondent in the witness statement of Steven Horton, Chief Executive Officer (CEO) of the Respondent. I have summarised the key points.
On 25 January 2016, the Applicant commenced full-time employment with the Respondent as a Curriculum Coordinator.[1]
On 1 January 2019, the Applicant was promoted to the role of Principal on a fixed term contract that expired on 1 January 2021.[2] The parties to that employment contract were the School Committee of Kulkarriya Community School and the Applicant.[3]
On 7 February 2022, the Respondent was served with an application to stop bullying, and on 26 April 2022, the Applicant discontinued the application.[4]
The Applicant was absent from her employment from 27 August 2021 to 30 June 2022, totalling an approximate figure of 10 months.[5]
On 14 June 2022, a meeting was held with the Respondent’s board members (Board) to discuss the Applicant’s ongoing employment. The Board passed the following motion:
a) the Applicant was to return to work in the short-term, being within 3 months; and
b) if the Applicant could not return to work within 3 months, then her employment would be terminated.[6]
By letter dated 22 June 2022, Anglicare WA confirmed that the Applicant attended its services on dates between 2 September 2021 and 19 May 2022.[7] By further letter dated 20 February 2023, a Social Worker and Counsellor confirmed that the Applicant had attended for general counselling on 23 June 2022, 19 July 2022, 9 August 2022, 3 October 2022, 6 February 2023, and 16 February 2023.[8]
On 27 June 2022, the Applicant attended an independent medical assessment on the direction of the Respondent. The Fitness for Duty Summary of the Medical Report dated 30 June 2022 stated:
Health Status
Ms Chapman has a medical condition that impacts her capacity to undertake her usual work tasks, duties, demands and hours of her position.Work Capacity
Temporarily unfit for all work.
It is likely Ms Chapman’s circumstances will improve within the next three months. A medical review can be undertaken at this point in time as required.[9]
On 30 June 2022, the Board proceeded with the decision to terminate the Applicant’s employment because:
a) the Applicant was occupying a position that was vital to the functioning of the school; and
b) the Respondent required someone in the position who was ready, willing, and able to perform the duties of a Principal.[10]
According to the Respondent, the Applicant’s employment was terminated on 30 June 2022.[11] The letter of termination referenced:
a) the Applicant had been absent from her place of employment since 27 August 2021;
b) the Applicant had not been on any paid leave since 27 February 2022;
c) the Applicant had been absent on unpaid leave for a period of more than 17 weeks and had not provided a date on when she was likely to return; and
d) as a consequence of her absence and ongoing absence, she was advised that her employment had been terminated in accordance with the Fair Work Regulations 2009 (Cth), and the termination was to take effect as of the date of the letter.[12]
On 14 November 2022, the Applicant was medically assessed pursuant to a WorkCover WA – Progress certificate of capacity (Progress Certificate). The Progress Certificate read that the Applicant had no capacity for any work for the period 31 October 2022 until 8 December 2022.[13]
By letter dated 20 February 2023, Dr Tzong Ruenn Lai of the Derby Aboriginal Health Service Council wrote, ‘This is to certify that Miss Huria Chapman has been receiving medical treatment related to work since August 2021 and it remains current’.[14] The letter continued:
On 30th June 2022, she states that she was unlawfully termination [sic] from her job role. During that period of time, she was not in a right state of mind to submit the application within the time frame required. She was receiving treatment from other health professionals which lead to improvement in her symptoms. This has lead [sic] to delay in her application submission on 28 November 2022.
Based on this information, hope that she can have special consideration on her delayed application.
The certificate was completed on 20/02/2023.[15]
By letter dated 27 February 2023, Dr Sin Kaan Chan of the Derby Aboriginal Health Service Council wrote ‘[t]o whom it may concern’. The letter explained that the Applicant has been receiving medical treatment related to her work and workplace in a remote community since August 2021. It further noted that the Applicant was receiving psychotherapy and treatment for Post Traumatic Stress Disorder and adjustment disorder. Having been placed on a GP Mental Health Care Plan on 1 June 2022, the letter outlined that the Applicant continues to receive treatment.[16] The letter of 27 February 2023 continued:
On 30th June 2022, she stated that she was unlawfully terminated from her role as School Principal. Due to ongoing mental trauma she experienced since August 2021, which had significant impact on her daily functioning, she was not in the right frame of mind to submit her application within the required time frame.
Thank you for considering granting an extension of time for her delayed application.
This certificate is completed on 27 February 2023.
In summary, the Applicant has submitted multiple documents, including the following that relate to the period prior to her dismissal:
a) medical certificate for the period 13 September to 24 September 2021;
b) medical certificate for the period 9 November to 10 December 2021;
c) medical certificate for the period 20 January to 20 March 2022;
d) first certificate of capacity dated 16 February 2022;
e) progress certificate of capacity dated 9 May 2022;
f) fitness for work dated 26 May 2022;
g) email to the Respondent’s legal representative dated 26 May 2022;
h) letter to director of the Board dated 16 June 2022; and
i) letter of attendance to Anglicare counselling dated 22 June 2022.
Regarding documents that were filed in respect of the period post 30 June 2022, the Applicant filed the following:
a) progress certificate of capacity dated 14 November 2022;
b) letter of advice to Anglicare counselling dated 20 February 2023;
c) letter by Dr Tzong Ruenn Lai dated 20 February 2023; and
d) letter by Dr Sin Kaan Chan dated 27 February 2023.
An extension of time
Section 774(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[17]a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[18]which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis,the Full Bench expressed:
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
Where exceptional circumstances are established, the Commission still has discretion whether to grant an extension of time. Such discretion is, however, to be exercised having regard to all the circumstances, including whether the grant of an extension is fair and equitable. The onus for establishing ‘exceptional circumstances’ rests upon the Applicant.
3.1 The reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[19] 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 an applicant’s favour, however, all of the circumstances must be considered.[20]
The relevant period required to be considered under s 774(2)(a) is the period after the 21-day timeframe for lodging the application.[21] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[22]
In the decision of Nulty v Blue Star Group Pty Ltd, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’.[23] The Full Bench said that:
In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[24]
The Applicant provided several reasons for the delay in making her application. Those reasons included that the Applicant:
a) was unaware that the Respondent could terminate her employment as Principal of the Kulkarriya Community School;
b) was appointed by the Kulkarriya Community School Committee as Principal of Kulkarriya Community School, commencing on 1 January 2019, and it therefore followed that only the Committee could terminate her employment;
c) felt intimidated by the CEO of the Respondent, Mr Horton, as she had previously made a claim of workplace bullying against him;
d) was suffering with mental injury at the time her employment was terminated, and she had only recently become more aware that her employment with Kulkarriya Community School has ceased; and
e) was on a period of authorised absence pursuant to an ongoing progress medical certificate and therefore she had no capacity for work at the time of the termination of her employment.
In response to the Applicant’s purported lack of knowledge that the Respondent could terminate her employment, the Respondent observes:
a) following the Applicant’s dismissal, she did not communicate this to the Respondent;[25] and
b) the second page of the Applicant’s letter of termination states that it was issued by the Chairperson of the Governing Body of the Kulkarriya School.
Whilst the Applicant, in part, attributes the lateness of her application on not knowing that the Respondent could terminate her employment as Principal, and that Kulkarriya Community School Committee was the only entity that could dismiss her, I find these submissions implausible for the following reasons.
It is evident from the Applicant’s email dated 19 July 2022 to the Yungngora Association that she had accepted her employment had ended. This is irrespective of the entity referred to on the letter of termination. Nevertheless, the person who signed off on the letter of termination to the Applicant was Mr Thomas Skinner, Chairperson – Governing Body – Kulkarriya School.[26] It strikes me that on any objective level, one may presume that Mr Skinner had authority to inform the Applicant she was dismissed. Furthermore, the letter that he provided was unequivocal in its terms, stating:
As a consequence of your absence and ongoing absence, this letter is to advise that your employment has been terminated in accordance with the above regulation and is to take effect, the date of this letter.[27]
The Applicant’s email dated 19 July 2022 refers to both ‘final pay and entitlements due’ in addition to her ‘final payslip’. [28] The Applicant’s use of the word ‘final’ connotes that the employment had come to an end, such that there would be no further pay and no further payslips. At this time, it was open to the Applicant to make her application to the Commission, and if she had done so, it would have been within the statutory period provided for in s 774(1).
By correspondence dated 15 September 2022, the Applicant wrote to the Respondent stating:
Dear Mr Thomas Skinner (Chairperson) and Board,
As legally required, will you please send me a separation certificate, and advise me of my outstanding final pay, long service leave (LSL) and accommodation bond of $300.
In addition, please send me a copy of my final pay slip.[29]
By 15 September 2022, it was beyond any doubt that the Applicant knew that she had been dismissed and that the Respondent was capable of dismissing her.
However, regarding the Applicant’s purported misunderstanding of these points, I find that as of 30 June 2022, the Applicant knew she had been dismissed, and that come 19 July 2022, the Applicant not only knew that she had been dismissed but also that Mr Skinner had authority on behalf of the Respondent to dismiss her. The Respondent makes the salient point that at no point in the Applicant’s correspondence of 19 July 2022 or 15 September 2022 did the Applicant challenge the dismissal or Mr Skinner’s authority to inform her of the same.
The Applicant submitted that at the time of her dismissal she was suffering with mental injury. The Medical Report dated 30 June 2022, identified that the Applicant had a medical condition that impacted her capacity to undertake her usual work tasks, duties, demands and hours of her position – and that she was temporarily unfit for work.[30]
I accept that the Applicant had a mental health illness with a dual diagnosis, as is evident from the Medical Report. The Medical Report focused on the Applicant’s capacity for work and did not traverse whether the Applicant’s mental health conditions prevented or seriously impeded her from undertaking the activities of daily living or matters such as attending to matters arising post-employment. Given the purpose and timing of the medical assessment and subsequent Report, this is completely understandable.
A similar observation can be made in respect of the Progress Certificate, dated 14 November 2022, which stated that Applicant had no capacity for any work for the period 31 October 2022 until 8 December 2022.[31] Again, the focus of such certificate was whether the Applicant was fit for work – meaning her occupation.
Whilst the Medical Report indicated that the Applicant would be temporarily unfit for approximately three months, the Progress Certificate, dated 14 November 2022, detailed a period of unfitness for work until 8 December 2022.
Before exploring this point further, it is convenient at this juncture to address other medical documentation relied upon by the Applicant. At hearing, the Applicant emphasised that she relied upon the two medical letters provided by her treating physicians.
The Applicant provided letters from Dr Tzong Ruenn Lai, the Applicant’s General Practitioner (Locum), and Dr Sin Kaan Chan, General Practitioner, both from the Derby Aboriginal Health Service Council. The letters were dated 20 February 2023 and 27 February 2023, respectively.
Both letters refer to the Applicant as not being in the ‘right frame of mind’ to have submitted her application within the required time frame. Presumedly, the Applicant has advised the doctors of this application and that she had made the application outside of the period permitted. Understandably, the letters are therefore not contemporaneous, and it appears they were issued after the Respondent’s jurisdictional objection was raised. Given the timing of the letters and their content, I consider them to be of less probative weight than a contemporaneous medical report or assessment that was provided unsolicited. Let me explain what I mean by the term ‘solicited’, in this context. It is evident from the letters that both General Practitioners were advised that the purpose of the letter was to evince that the Applicant was not sufficiently capable to make her application within the statutory time frame, and to advise this Commission: (a) why that was the case; (b) that with treatment she had improved, ultimately culminating in her making her application – albeit delayed; and (c) to adjure that the Applicant be given special consideration based on the information provided in the letter.
Whilst appreciative that the Applicant has been in receipt of medical treatment since August 2021, the letter from Dr Lai states that the Applicant was receiving treatment from other health professionals which led to an improvement in her symptoms. However, there is no specificity in respect of when this improvement occurred or what that treatment was.
As to the receipt of treatment from other health professionals, the Applicant furnished a letter dated 20 February 2023 from a Social Worker and Counsellor who confirmed that the Applicant had attended for general counselling on 19 July 2022, 9 August 2022, 3 October 2022 and thereafter on 6 February 2023 and 16 February 2023. During the period of the delay (of 130 days), the Applicant attended only three general counselling sessions.[32]
The letter from Dr Lai refers to the Applicant not being in the ‘right state of mind’ to submit the application. It is, at its highest, a general statement by a medical practitioner made on 20 February 2023, which provides blanket coverage over the period of 30 June 2022 until the application was submitted. By ‘blanket coverage’, I simply mean that the Applicant seeks to rely on the letters of 20 February 2023 and 27 February 2023 as a panacea for her lateness.
In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[33] The evidence before me shows that while the Applicant was not in the ‘right frame of mind’ to file her application in this Commission, she was capable of attending to other matters.
Mr Horton gave unchallenged evidence that on 25 August 2022, a conciliation conference occurred between the legal representatives of the Respondent and Applicant, regarding the Applicant’s workers’ compensation claim.[34] At Annexure SH-14 of Mr Horton’s witness statement, there is correspondence from WorkCoverWA setting out a ‘Notice of Acceptance of Application for Conciliation’, it reads in part:
Applicant
Huria ChapmanRespondent
Kulkarriya Community SchoolThe above application for conciliation lodged with the Workers’ Compensation Conciliation Service on Monday, 4 July 2022 has been accepted on Wednesday, 6 July 2022.
Evidently, prior to 4 July 2022, the Applicant had capacity to provide instruction relating to, or otherwise arrange for, an application for conciliation to be lodged with the Workers’ Compensation Conciliation Service. At hearing, the Applicant sought to minimise her input in dealing with the Workers’ Compensation claim, noting that the lawyers she had engaged to deal with the claim informed her of outcomes of the process by telephone and email. However, the Applicant conceded, nevertheless, she provided the lawyers with instruction.
Mr Horton gave evidence that:
a) on 19 July 2022, the Applicant sent an email to the Respondent attaching a letter regarding outstanding alleged entitlements;[35]
b) on 15 September 2022, the Applicant sent an email to the Respondent requesting a separation certificate and final payslip;[36] and
c) on 18 October 2022, the Applicant sent an email to the Respondent following up on the separation certificate.[37]
Initially at hearing, the Applicant admitted that she had sent the correspondence to the Respondent. However, as the hearing progressed, the Applicant stated that she had obtained assistance in drafting the correspondence. The Applicant stated that the assistance had been provided by the Union Representative who had assisted with her workplace bullying application. However, at another point the Applicant noted that the Union Representative resigned from the Union shortly after the Applicant’s workplace bullying application, which was well before the correspondence was sent, as referred to at paragraph [46]. The Applicant’s evidence thereafter suggested that the Union Representative had pre-prepared drafts of the emails referred to at paragraph [46]. In short, this part of the Applicant’s narrative evolved during the hearing, making it difficult to accept that the Applicant was being candid. Briefly stated, this part of the Applicant’s evidence was unsatisfactory, but perhaps fell short of obfuscation.
Having considered all the evidence, I find that the Applicant’s engagement in her workers’ compensation claim and in arranging for correspondence to be sent to the Respondent relating to the termination of her employment demonstrates that the Applicant had capacity during the period of delay to write and submit correspondence relating to her dismissal (or to arrange for that to occur) and to instruct her lawyers in respect of her workers’ compensation process.
Whilst I am of no doubt that the Applicant was afflicted with mental illnesses, those illnesses, whilst incapacitating her in respect to her work as a Principal, did not incapacitate her to the extent that she was not capable of acting in her own capacity and engaging in formal dealings relating to her dismissal or purported injury sustained in the workplace.
Regarding the Applicant’s feelings of intimidation as forming one of the reasons for the delay, I note that such feelings did not preclude the Applicant from enquiring about her statutory entitlements, seeking a separation certificate or engaging in a workers’ compensation process against the Respondent. I therefore find this reason for the delay (or in part) unlikely in all the circumstances.
Whilst I have considered the delay as the period beyond the 21-day period, regard has been had to the circumstances from the date the termination of employment took effect. Considering the totality of the evidence, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period of the delay in lodging her application.
At hearing, the Applicant made mention of not knowing what recourse to take when having been dismissed. However, it is evident that the Applicant was conversant with a lawyer representing her in her workers’ compensation claim and was therefore cognisant that she could always take advice on such matters. In any event, it is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[38]
Whilst accepting that the Applicant has a mental illness (with a dual diagnosis), I am not persuaded that the Applicant’s illness has contributed to the delay, for the abovementioned reasons. The other reasons relied upon by the Applicant are unconvincing and in my view are insufficient to explain part of, or the entirety of, the delay. These findings in culmination weigh against a finding of exceptional circumstances.
3.3 Action taken to dispute the termination
There is no evidence before the Commission that the Applicant took any action to dispute the termination of employment prior to filing her application.
In all the circumstances, I consider that this factor weighs against a finding of exceptional circumstances.
3.4 Prejudice to the employer
The Respondent submits that if the Commission were to exercise discretion to extend the time for filing the application, this would cause prejudice to the Respondent because of the:
a) significant length of time that has passed since the termination whereby memories of events have likely faded; and
b) unnecessary time and costs associated with having to defend the application in circumstances which it would otherwise be barred because of the applicant’s failure to comply with the time limit.
Whilst the Respondent has identified two sources of prejudice, I am unconvinced by the Respondent’s argument that the fading of memories will in some way prejudice its case. The Respondent appeared amply adept at providing detailed evidence for the purpose of this hearing, and I have no hesitation that such evidence would be later relied upon were the matter to proceed to the merits.
Similarly, the latter source of prejudice cannot be sustained. Clearly, the legislature would not have endowed the Commission with authority to extend a period of time in which to make an application if the circumstances were exceptional circumstances, if the concern had been only to protect former employers from claims that were otherwise time barred.
However, the mere absence of prejudice is not, in my view, necessarily a factor that would point in favour of the grant of extension of time.
3.5 Merits of the application
The Act requires me to consider the merits of the application in considering whether to extend time. In the current context, the Full Bench of Australian Industrial Relations Commission has emphasised that if the application has no merit, then it would not be unfair to refuse to extend the period for lodgement.[39] The Full Bench has stated it would be sufficient for an applicant to establish that the substantive application was not without merit.[40]
In all of the circumstances, I am unconvinced that the application has no merit. However, evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[41] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
As such, I consider that the merits in this case are a neutral factor in determining whether to grant an extension of time.
3.6 Fairness as between the person and other persons in a like position
The Deputy President in Morphett v Pearcedale Egg Farm considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[42]
Having received no submissions from the parties on this point, I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered those factors in s 774(2) of the Act, I am not satisfied that there are exceptional circumstances for the abovementioned reasons. Consideration therefore turns to whether it is fair and equitable that time should be extended.
Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension. Whilst again appreciative that the Applicant was afflicted by two mental health diagnoses, she retained capacity during the delay period to address her workers’ compensation claim by instructing lawyers and demonstrated capability to address her statutory entitlements with her former employer. The other factors are, in the majority, neutral considerations – weighing neither in favour nor against.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. The application for the Commission to deal with an unlawful termination dispute is therefore dismissed. An Order[43] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms H Chapman, Applicant.
Ms E Ikonomou, for the Respondent.
Hearing details:
2023.
Perth (by telephone):
13 March.
[1] Witness Statement of Steve Horton, [6] (Horton Statement).
[2] Ibid [7].
[3] Applicant’s Document List, attachment A; Digital Hearing Book, 102 (DHB).
[4] Horton Statement (n 1) [11], [13].
[5] Ibid [16].
[6] Ibid [19].
[7] DHB (n 3) 127.
[8] Ibid 128.
[9] DHB (n 3) 152.
[10] Horton Statement (n 1) [18]–[19], [22]–[23].
[11] Ibid [23].
[12] DHB (n 3) 182.
[13] Form F9 – Application for the Commission to deal with an unlawful termination dispute, attachment 3 (Form F9); ibid 45.
[14] DHB (n 3) 125
[15] Ibid.
[16] Ibid 196.
[17] (2018) 273 IR 156 (Stogiannidis).
[18] (2010) 197 IR 403.
[19] Stogiannidis (n 17) 165 [39].
[20] Ibid.
[21] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[22] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[23] (2011) 203 IR 1.
[24] Ibid 6 [14].
[25] Horton Statement (n 1) [24]–[26].
[26] Applicant’s Document List, attachment C; DHB (n 3) 183.
[27] Applicant’s Document List, attachment C; DHB (n 3) 182.
[28] Horton Statement (n 1) annexure SH-11; DHB (n 3) 292.
[29] Horton Statement (n 1) annexure SH-2; DHB (n 3) 294.
[30] DHB (n 3) 152.
[31] Form F9 (n 13) attachment 3; DHB (n 3) 45.
[32] DHB (n 3) 128.
[33] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[34] Horton Statement (n 1) [31].
[35] Ibid [24], annexure SH-11; DHB (n 3) 292.
[36] Horton Statement (n 1) [25], annexure SH-12; DHB (n 3) 294.
[37] Horton Statement (n 1) [26].
[38] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[39] Telstra-Network Technology Group v Kornicki (1997) 140 IR 1, 11.
[40] Ibid.
[41] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37] – [38].
[42] [2015] FWC 8885, [29].
[43] PR760257.
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