Jaspreet Bedi v Serco Australia Pty Ltd

[2019] FWC 7797

[2019] FWC 7797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394—Unfair dismissal

Jaspreet Bedi
v
Serco Australia Pty Ltd
(U2019/8964)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 29 NOVEMBER 2019

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application for re-opening – binding settlement agreement – re-opening not in interests of justice – application dismissed

[1] On 14 August 2019 Jaspreet Bedi (Mr Bedi or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal on 31 July 2018 by Serco Australia Pty Ltd (Serco or the employer) (the second application).

[2] Some 12 months earlier, on 7 August 2018, Mr Bedi made a similar application 1 concerning the same alleged dismissal (the first application). The first application was discontinued by Mr Bedi by notice dated 12 September 2018 following settlement discussions with the employer.

[3] There is a dispute over whether there was a dismissal and (if so) the date the alleged dismissal took effect. Mr Bedi says he was dismissed effective from 31 July 2018. The employer says Mr Bedi was removed from a casual employment roster (but not dismissed) from 6 July 2018. 2

[4] Mr Bedi’s second application has been filed 379 days after (he says) his dismissal took effect 3, being 358 days beyond the period of 21 days required by the FW Act for the making of such claims. For Mr Bedi’s second application to proceed he requires the Commission to grant an extension of time.4

[5] Mr Bedi seeks that extension or, in the alternative, re-opening of the first application. He contends that Serco failed to honour the settlement agreement that had been reached on the first application.

[6] Serco filed a form F3 employer response to the second application on 17 September 2019. It contended that Mr Bedi was ‘irregularly’ employed and removed from the pool of casual employees for a failure to meet Serco’s requirements. Serco raised two jurisdictional objections: that the second application was lodged out of time, and that Mr Bedi was not dismissed.

[7] Serco oppose an extension of time on the second application and, in the alternative, oppose re-opening the first application. It submits that no exceptional circumstances exist as to warrant an extension of time. It submits that the first application had been finally disposed of by both a binding settlement agreement and discontinuance, and that it would not be in the interests of justice for a settled application to be re-opened. Serco also foreshadows pursuing an application under section 399A(1)(c) of the FW Act should an extension of time be granted.

[8] This decision concerns these issues.

[9] I conducted a hearing by telephone on the application for an extension of time, and on re-opening, on 8 November 2019.

[10] In advance of the hearing, the Commission directed Mr Bedi to file materials in support of his application. He did so. Serco also filed materials in support of its position.

[11] On 23 October 2019, I granted Serco permission to be represented by a legal practitioner. 5 At the hearing, Mr Paul Brown of Baker & McKenzie represented Serco. Mr Bedi was self-represented.

[12] I heard evidence from Mr Bedi and from an Employee Relations Specialist employed by Serco, Ms Kristine Waite. I make findings based on the manner in which evidence was given, its consistency with corroborating documentary evidence and inherent plausibility.

The facts

[13] I make the following findings.

[14] Serco is a large business forming part of a multinational organisation providing, amongst other activities, immigration services to government clients.

[15] Mr Bedi was employed as a casual employee for two years and seven months before being removed from its pool of casual employees in July 2018. 6 In this time he worked 17 casual shifts. His last casual shift was on 9 December 2017, seven months before being removed from the casual roster.

[16] Mr Bedi’s first and second unfair dismissal application concern that same alleged dismissal.

[17] The first application was referred for conciliation on 4 September 2018 but did not settle.

[18] On 10 September 2018 the extension of time issue on the first application was listed for hearing before Commissioner Platt, with the hearing scheduled for 24 September 2018. The Commissioner issued directions requiring material to be filed by Mr Bedi by 17 September 2018.

[19] Further discussions between Mr Bedi and Serco occurred. He and Serco reached a settlement agreement. The agreement, dated 12 September 2018, states: 7

“Agreement

On this 12th day of September 2018, the parties to this Agreement agree as follows:

1. Serco Australia Pty Limited acknowledges that Mr Jaspreet Bedi wishes to be considered for casual engagements in Adelaide.

2. Mr Jaspreet Bedi wishes to discontinue the proceedings before the Fair Work Commission known as U2018/8128.

3. In consideration for Mr Bedi discontinuing the Fair Work Commission proceedings, Serco Australia Pty Limited will:

(a) advise Mr Bedi of any training and/or accreditation opportunities;

(b) permit Mr Jaspreet Bedi to participate in the relevant training and/or accreditation opportunities at his own expense; and

(c) in the event of Mr Bedi, at his own expense, obtaining the relevant accreditation and/or training status, permit Mr Bedi to be considered for casual engagements, subject to Mr Bedi being offered and accepting an offer of casual employment.”

[20] The settlement agreement was signed and witnessed by Mr Bedi and Serco.

[21] The following day (13 September 2018) Mr Bedi filed a form F50 Notice of Discontinuance dated 12 September 2018. 8 The Notice was signed by Mr Bedi. It claimed to “wholly discontinue this matter”.

[22] No further proceedings arose on the first application.

[23] A disagreement arose from at least January 2019 concerning implementation of the settlement agreement. Correspondence was exchanged between Mr Bedi and Serco but the disagreement did not resolve. I make findings on that disagreement in considering Mr Bedi’s explanation for the delay.

[24] Mr Bedi filed the second application on 14 August 2019.

[25] Serco filed its form F3 employer response on 17 September 2019.

[26] Serco concede that an employee who has made but discontinued an unfair dismissal application and then re-files a further unfair dismissal application litigating the same dismissal is not caught by the general rule expressed in section 725 of the FW Act prohibiting multiple applications. 9

Extension of time application

[27] For Mr Bedi’s second application to proceed, he requires the Commission to grant an extension of time.

[28] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[29] Mr Bedi’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time.

[30] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time. 10

[31] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 11 A decision whether to extend time under s.366(2) involves the exercise of a discretion.12

[32] I consider the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 13 which stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[33] The principles of Nulty have recently been cited with approval by a Full Bench of the Commission in Tamu v Australia for UNHCR. 14

[34] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[35] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. 15

[36] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional. 16

[37] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged.

[38] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 17

[39] Mr Bedi’s explanation for the delay is simply put: he says he was waiting for Serco to honour the settlement agreement (as he understood it to mean) and only lodged the second application once it was clear to him that Serco would not do so.

[40] At the heart of this contention is the dispute over the meaning and implementation of the settlement agreement.

[41] I make the following findings concerning the implementation dispute.

[42] Serco’s obligations under the settlement agreement were threefold:

(a) to advise Mr Bedi of any training and/or accreditation opportunities;

(b) to permit Mr Bedi to participate in the relevant training and/or accreditation opportunities at his own expense; and

(c) in the event of Mr Bedi, at his own expense, obtaining the relevant training and/or accreditation status, to permit Mr Bedi to be considered for casual engagements, subject to Mr Bedi being offered and accepting an offer of casual employment.

[43] Mr Bedi was absent overseas between October and December 2018.

[44] On 19 December 2018 Mr Bedi advised Serco that he was back from overseas and “ready to do his (two-day) refresher course with Serco”. 18

[45] On 10 January 2019 Serco advised Mr Bedi that in order to be considered for immigration work from the casual pool, in light of his initial induction training having been in December 2015 and his last casual work having been in December 2017, he would, in addition to the refresher course, need to again complete the five-week Induction Training Course (ITC). He was informed that no current ITC course was planned for Adelaide, but he would be advised when scheduled. 19

[46] On 10 January 2019 Mr Bedi replied by return email. He disputed that the settlement agreement required him to undertake a full ITC course. He claimed that the agreement was that he only undertake the refresher course. He said that a five week ITC course was not practical given he had another job as a security officer (four days a week) and a wife and infant daughter to support. He continued: 20

“So I am advising you through this email that I am going to re-open my case with Fair Work Ombudsman so that they can make a decision about what was promised and what has been delivered. I will wait for your reply before I go back to Fair Work Ombudsman and re-open my case.”

[47] Mr Bedi’s evidence 21 was that his reference to the Fair Work Ombudsman in his email of 10 January 2019 was a reference to the first application he had filed in the Fair Work Commission.

[48] The following day, 11 January 2019, Serco replied in the following terms: 22

“Dear Jaspreet,

On 12 September 2018, you and Serco entered into the enclosed Agreement which resulted in the enclosed Notice of Discontinuance of Matter U2018/8128. We propose to honour that Agreement. It follows Serco disagrees with your interpretation of the Agreement.

Regards

Kris”

[49] Mr Bedi replied later that day. He said, in part: 23

“I consider myself tricked into signing this agreement with a careful selection of words and now is being used against me to do a full ITC instead of agreed AOR. I am going to seek legal advice to appeal against this agreement.”

[50] On 1 February 2019 Mr Bedi advised Serco that he had received legal advice. He sought Serco’s view on why it asserts he has a legal obligation to undertake an ITC course.

[51] On 6 February 2019 Serco advised Mr Bedi that it had already provided a response and had no further comment.

[52] On 2 July 2019 Serco advertised certain positions. Mr Bedi applied on 6 July. He had an interview on 26 July. He was advised on 2 August 2019 that he had been unsuccessful.

[53] On 2 August 2019 Mr Bedi emailed Serco 24 contending that it had failed to honour the settlement agreement in that it had failed to contact him about the advertised positions and had not advised or put him through a training program.

[54] Mr Bedi filed the second application on 14 August 2019.

[55] On 26 August 2019 Serco wrote to Mr Bedi advising in part: 25

“After reviewing your complaint, which relates to being offered and accepting casual work, you have not been offered casual work.

This is separate to the training commitments in the enclosed Agreement. Prior to any consideration of you undertaking casual work for Serco, the terms of the Agreement require you to undertake Serco training at your own expense.

The details of the next Induction Training Course to be held in Adelaide are as follows…from 16 September 2019 to 25 October 2019…Course Cost $2,500 to be paid by you prior to commencing the course…Please advise if you intend to commence the above training course…”

[56] Mr Bedi’s evidence was that the settlement agreement did not require him to again complete an ITC course to be included in the casual pool and, aside from practicality, its cost is prohibitive if to be funded by him.

[57] As to the timing of the second application, Mr Bedi’s agreed that he “held off tactically” before filing the application: 26

“When I think I have a basis for this application to put in, I will put it in.”

[58] Mr Bedi’s explanation for the delay in filing the second application is not convincing. It was apparent to him from 10 and 11 January 2019 that he and Serco had a difference of view about the meaning and implementation of the settlement agreement. On each of those days he notified Serco that he intended to institute proceedings to re-open his unfair dismissal proceedings in order to challenge Serco’s interpretation of the settlement agreement.

[59] Notwithstanding forming this view in January 2019, Mr Bedi delayed another seven months before filing the second application. He claimed to have received legal advice as far back as 31 January 2019 yet he did not file until 14 August 2019.

[60] Serco did not contribute to this delay. It made it clear to Mr Bedi on 11 January 2019 that it disagreed with his interpretation of the settlement agreement. It made it clear on 6 February 2019 that it had no further comment on his contentions.

[61] Mr Bedi claims that he delayed filing the application because he was waiting for Serco to advise him of an ITC course in Adelaide as per clause 3(a) of the settlement agreement. It is true that Serco did not do so until August 2019. Serco’s evidence was that there was no ITC course in Adelaide until that date. 27 Whether that is so, waiting for an ITC course (wherever located) is not a reasonable explanation for the delay. Mr Bedi’s unfair dismissal application seeks to contest his initial removal from the casual pool in July 2018. Waiting to be notified of fresh training to secure qualification for new employment contracts at an indeterminate future date from within the casual pool is not an acceptable reason for delaying a challenge to past employment arrangements.

[62] Mr Bedi further claims that he delayed filing until jobs were advertised by Serco mid-year and he was knocked back, despite securing an interview that he believed went well.

[63] This is not a convincing explanation for the delay. Serco had no obligation under the settlement agreement to notify Mr Bedi of jobs being advertised. It simply had an obligation to permit him to apply if he had, at his expense, obtained the relevant training and/or accreditation status. Mr Bedi had not done so by the time he applied.

[64] Mr Bedi submitted that Serco’s obligation to advise him of training and accreditation opportunities inferred an obligation to advise him of job opportunities. I disagree. Training and accreditation to qualify for particular employment is a separate activity to the employment itself.

[65] Whilst Mr Bedi was prompted to file his second application in August 2019 after his employment application of July 2019 was rejected the issues that he is seeking to now litigate (his initial removal from the casual pool and his interpretation of the settlement agreement) could have been readily litigated by him seven months earlier when he was first made aware of the dispute over the settlement agreement.

[66] For these reasons I find there is no acceptable explanation for the delay. The reasons advanced by Mr Bedi do not weigh in favour of granting an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[67] Mr Bedi was aware of having been removed from the pool of casual employees by at least 31 July 2018, more than 12 months before filing the second application.

[68] In the circumstances of this matter, this factor weighs against granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[69] It is self-evident from Serco’s response to the first application that the employer has been on notice from at least 7 August 2018 that Mr Bedi was contesting the fairness of being removed from the casual pool of employees.

[70] It is equally self-evident that the employer believed that issue to have been resolved by the settlement agreement it reached with Mr Bedi on 12 September 2018.

[71] In circumstances where the initial action taken by Mr Bedi to put the employer on notice arose via an unfair dismissal application that was discontinued following a settlement agreement, the initial notification does not weigh in favour of granting an extension of time on the second application.

[72] However, since January 2019 the employer has been aware, based on sporadic communication from Mr Bedi, that he had formed a different view about the settlement agreement and how it should be implemented.

[73] Given that the implementation disagreement of which the employer was aware has prompted the second application, this factor weighs marginally in favour of an extension of time.

Prejudice to the employer (section 394(3)(d))

[74] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.

[75] Mr Bedi’s application seeks to litigate events that occurred over a year prior. Although Serco is a large business with resources to manage historic litigation, the considerable length of time creates potential prejudice in gathering evidence and recall of events by witnesses.

[76] Further, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 28

[77] In the circumstances of this matter, this consideration weighs marginally against an extension of time.

Merits of the Application (section 394(3)(e))

[78] Determination of the merits of this matter would involve factual matters which, on a perusal of Mr Bedi’s application and the employer’s response, involve a level of detail and potentially dispute.

[79] I have not heard that evidence at this stage. I am unable to draw any conclusion about the strength of each case.

[80] In the circumstances of this matter, this consideration is a neutral factor.

Fairness between persons in similar position (section 394(f))

[81] No evidence or submissions from Mr Bedi or Serco raise issues of fairness with and between other persons.

[82] In the circumstances of this matter, this is not a relevant factor.

Conclusion on extension of time

[83] Mr Bedi has a grievance about his alleged dismissal. He wants to again be rostered from within the casual pool.

[84] However, his second application has been prompted by his grievance about the implementation of the settlement agreement.

[85] The delay in lodgement is extreme particularly having regard to the 21 day statutory time limit.

[86] There are two periods of delay. Delay from the date dismissal took effect (approximately 12 months) and delay for the period from when the implementation disagreement become apparent to Mr Bedi until filing the second application (approximately 7 months).

[87] The reasons for delay are unconvincing. They do not explain let alone adequately explain the delay or periods of delay.

[88] I have found that there is no acceptable explanation for Mr Bedi waiting seven months from when the implementation disagreement became apparent until filing the second application.

[89] Weighing other relevant factors, none lead me to conclude that the circumstances in this matter are exceptional so as to warrant an extension of time.

[90] I refuse to grant an extension of time on the second application.

Re-opening application

[91] I now deal with the re-opening application.

[92] Mr Bedi submits, in the alternative, that the first application should be re-opened.

[93] He advances this position the ground that Serco has, in his view, failed to honour a binding settlement agreement.

[94] I find that Mr Bedi discontinued the first application on the basis that a settlement agreement had been reached that day (12 September 2018).

[95] Both Mr Bedi and Serco assert that the settlement agreement was a binding settlement agreement. This appears self-evident on the face of the agreement. It was signed by the parties and witnessed by persons that accompanied them.

[96] Mr Bedi claims that he rushed making the agreement, did not read it properly and made a mistake. 29 He also claims that he was tricked into making the settlement agreement. Mr Bedi made this assertion in his email to Serco of 11 January 2019. However, assertion does not constitute fact. There is no evidence before me of trickery or other unconscionability, misrepresentation or coercion at the time the agreement was made. At its highest, there is some material before me30 to support Mr Bedi’s contention that, at least prior to making the settlement agreement, he was under the impression that it was to be refresher training only that he was required to re-sit. However, the agreement was made in its terms. It expressly makes future employment by Mr Bedi conditional on “obtaining the relevant accreditation and/or training status”.

[97] A subsequent disagreement over the meaning of an agreement does not mean that the agreement was not lawfully made.

[98] Moreover, Mr Bedi’s contention that the settlement agreement is somehow rendered unlawful by alleged trickery at the time it was made is not consistent with his claim that there is a binding settlement agreement that Serco is now failing to honour.

[99] The decision of a Full Bench of the Commission in Curtis v Darwin City Council 31is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed. That decision gave effect to well-established authority set out by the Federal Court in Australian Postal Corporation v Gorman.32

[100] Absent duress or error (which may by declaration of a court, not the Commission render a discontinuance a nullity 33) there are sound public policy reasons why discontinued proceedings should remain discontinued. The efficient conduct of the work of the Commission requires parties to be accountable for and held to decisions they make during the course of litigation, including decisions to settle and discontinue proceedings. Concerning Notices of Discontinuance, separate Full Benches of the Commission have observed:34

“Once filed a notice of discontinuance is self executing and it brings the application to an end.”

[101] Mr Bedi has not instigated other proceedings seeking a declaration that the Notice of Discontinuance is a nullity.

[102] The unfair dismissal jurisdiction is not the appropriate forum to litigate rights and obligations under a binding settlement agreement. Re-opening a discontinued application in order to ventilate those issues and litigate a grievance about implementation of a settlement agreement would be an abuse of the jurisdiction. It would also be futile. Orders could not be made under Part 3-2 of the FW Act to enforce obligations or award damages for breaches of a binding settlement agreement.

[103] This being so, I do not need to express a view about the merit of Mr Bedi’s claim that Serco has breached the settlement agreement. Suffice to say that whilst Mr Bedi holds a genuine view that it was refresher training only that he would be required to re-sit, Mr Bedi’s view about Serco’s alleged failures to implement its side of the settlement agreement appear, on the face of it, to not be soundly based having regard to the terms of the agreement.

Conclusion

[104] For these reasons, Mr Bedi’s second application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Further, I have determined that it is not in the interests of justice for Mr Bedi’s first application to be re-opened given that it was discontinued consequent on a binding settlement agreement.

[105] In these circumstances, I do not need to deal with any issues foreshadowed by the employer under section 399A(1)(c) of the FW Act.

[106] Accordingly, the application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

J. Bedi, on his own behalf

P. Brown, with permission, for the Respondent

Hearing details:

2019.

Adelaide; by Telephone.

8 November.

Printed by authority of the Commonwealth Government Printer

<PR714290>

 1   U2018/8128

 2   In oral evidence the employer said that removal from the casual pool took effect on 1 July 2018: evidence of Kristine Waite audio transcript (at 116 minutes)

 3   If, as Mr Bedi contends, dismissal took effect on 31 July 2018. The Respondent Employer’s F3 response contends Mr Bedi ceased work on 6 July 2018. If there was a dismissal, and if that were the date the dismissal took effect, Mr Bedi’s second application was filed 403 days after the dismissal took effect, being 382 days out of time

 4   Given the dispute over the date dismissal took effect (if there was a dismissal), the Respondent Employer contended that Mr Beid’s first application was also out of time (by 11 days). On Mr Bedi’s contention concerning the date dismissal took effect, his first application was not out of time

 5   [2019] FWC 7303

 6   In this decision I do not determine whether that date was 31 July 2018 (as Mr Bedi claims) or 6 July 2018 (as Serco claims). That issue is best dealt with should Secro’s second jurisdictional issue (whether Mr Bedi was dismissed) require determination. Whether the date the alleged dismissal took effect was 6 July 2018 or 31 July 2018 has low materiality for the issues determined by this decision, given the considerable period the second application is out of time (either 358 days on Mr Bedi’s claim or 382 days on Serco’s response)

 7 R1 attachment KW1

 8 R1 attachment KW2

 9   Audio transcript 8 November 2019 (at 12 minutes); Narayan v MW Engineers Pty Ltd[2013] FWCFB 2530

 10   Smith v Canning Division of General Practice[2009] AIRC 959

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

 12   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

 13   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 14   [2019] FWCFB 2384 at [16] – [20]

 15   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]

 16   Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

 17   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

 18 R1 attachment KW4

 19 R1 attachment KW5

 20 R1 attachment KW6

 21   Audio transcript 8 November 2019 (at 39 minutes)

 22 R1 attachment KW7

 23 R1 attachment KW8

 24 R1 attachment KW10

 25 R1 attachment KW11

 26   Audio transcript 8 November 2019 (at 52 minutes and at 126 minutes)

 27   Audio transcript 8 November 2019 (at 89 minutes)

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

 29   Audio transcript 8 November 2019 (at 43 minutes)

 30   A4 Email chain 5, 6, 7 and 8 September 2018

 31   [2012] FWAFB 8021

 32 [2011] FCA 975 at [33] per Besanko J: “…a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”

 33   Turjman v Tabcorp Holdings Limited[2015] FWCFB 523 at [11]

 34   Narayan v MW Engineers Pty Ltd[2013] FWCFB 2530; Turjman v Tabcorp Holdings Limited[2015] FWCFB 523