Jay Patel v Woolworths Group Limited
[2025] FWC 454
•14 FEBRUARY 2025
| [2025] FWC 454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jay Patel
v
Woolworths Group Limited
(U2024/13025)
| COMMISSIONER P RYAN | SYDNEY, 14 FEBRUARY 2025 |
Application for an unfair dismissal remedy — application filed out of time — circumstances not exceptional — application dismissed
Introduction
This decision concerns an application by Mr Jay Patel (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant states that his employment with Woolworths Group Limited (Respondent) was terminated with effect from 11 September 2024. The Application was made on 31 October 2024.
Section 394(2) of the FW 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 (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 2 October 2024. The Application was therefore made 29 days outside the 21-day period.
The application for an extension of time was heard as a determinative conference on 20 December 2024. The Applicant was self-represented. The Respondent was represented by its Senior Lawyer, Ms Jennifer Zadel.
The parties relied on documentary material[1] and written submissions which were supplemented by oral submissions during the determinative conference.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Relevant Background
On 28 June 2024, the Respondent sent correspondence to the Applicant advising that it was undertaking a review of his ongoing employment because he had failed to attend work following a period of approved leave ending on 14 June 2024.
On 5 July 2024, the Applicant sent a response in which he raised concerns regarding “underpayment, workplace harassment, bullying, retaliation, workplace racial targeting, unsafe workplace, and illegal dismissing of employees early causing mental and financial damage.” The Applicant stated that he has “full intentions to continue …to call out and challenge all illegal, unethical practices and take legal action against you and the organisation.”
On 8 July 2024, the Respondent wrote to the Applicant requesting further details. The Applicant did not respond to this request.
On 17 July 2024, the Respondent informed the Applicant that it had determined to dismiss him and gave the Applicant four weeks’ notice that his employment will end on 14 August 2024.
On 18 July 2024, the Applicant sent correspondence to the Respondent stating that he did not see the email of 8 July 2024 and raised concerns that should have been considered by the Respondent before the decision to terminate his employment was made.
On 22 July 2024, the Respondent agreed to place its decision to dismiss the Applicant “on hold” and provided the Applicant with a further opportunity to respond to its correspondence of 8 July 2024. The Applicant was directed to provide a response by 29 July 2024.
Over the next four weeks, the parties exchanged further correspondence.
During this period, the Applicant visited his doctor on 9 August 2024 in relation to work related stress and anxiety and on 19 August 2024, the Applicant’s nominated treating doctor issued a workers compensation medical certificate which stated the Applicant did not have any capacity to work from 19 August 2024 to 16 September 2024.
On 3 September 2024, the Respondent sent correspondence to the Applicant advising that it was satisfied that it had addressed and resolved the concerns raised by the Applicant, that its decision to terminate his employment has been upheld, and that his last day of employment will be “Friday 11 September 2024”. Subsequent correspondence was issued to the Applicant correcting the date of termination to Wednesday 11 September 2024.
On 5 September 2024, the Applicant sent correspondence to the Respondent stating that he will be able to prove various factual matters when “this case goes to court for unfair termination.”
On 9 September 2024, the Applicant participated in an Microsoft Teams conference with his workers compensation lawyer to seek advice as to whether he could pursue an application for an unfair dismissal remedy and/or underpayment. The Applicant agrees that he did not instruct his workers compensation lawyer to make an application for unfair dismissal.
On 14 September 2024, the Applicant’s workers compensation lawyer sent correspondence which stated:
You enquired with the writer about the ability to pursue a claim for unfair dismissal. We advised you that this will require the involvement of an employment lawyer and we will seek to identify the best individual to assist you in this matter. This is not only in respect to the potential unfair dismissal claim but you may have a further claim with respect to underpayment.
(Emphasis added)
On 16 September 2024, the Applicant’s nominated treating doctor issued a workers compensation medical certificate which stated the Applicant did not have any capacity to work from 16 September 2024 to 14 October 2024.
On 14 October 2024, the Applicant’s nominated treating doctor issued a workers compensation medical certificate which stated the Applicant did not have capacity to work for the Respondent from 14 October 2024 to 11 November 2024.
On 24 October 2024, the Applicant’s workers compensation lawyer provided him with the contact details of three lawyers, as well as the contact details for the Law Society of New South Wales.
On 30 October 2024, the Applicant accessed the internet, located the details of an employment law firm, and made an online enquiry. This law firm was not one of the three firms nominated by his workers compensation lawyer. In making that enquiry, the Applicant stated that he became aware that there was a 21-day time limit to make an application for unfair dismissal.
At approximately 8:23am on 31 October 2024, the Applicant sent correspondence to his workers compensation lawyers which stated:
The point is, the time you took to inform me to contact Law Society from our conversation in 2nd week up September to October 24th, the statutory limitations to file
claims for unfair dismissal has passed. Unfair dismissal needs to be filed within 21 days. This is really disappointing outcome.
At approximately 8:27am on 31 October 2024, the Applicant’s workers compensation lawyer sent correspondence to the Applicant which stated:
I do acknowledge your disappointment.
As I don't practice in employment law, I do not know of what statutory limitations are applicable in unfair dismissal claims. This is not my practise area.
I wrote to you advising I'll provide you with details of employment lawyers to contact and I acknowledge it took time, but I needed research the best firms to take on employment related matters in class action matters.
I acknowledge your disappointment.
(Emphasis added)
At approximately 11:00am on 31 October 2024, the Applicant had a telephone call with an employment lawyer in response to the online enquiry he made the previous day. At 11:15am, the employment lawyer sent correspondence to the Applicant which stated:
Thank you for your time on the phone just now.
As discussed, so that we may review your inquiry further, please send us a copy of:· Your employment contract;
· Payslip;
· Termination letter;
· Copy of the application you filed in the Fair Work Commission;
· A brief timeline of events, including what occurred leading up to the termination of your employment; and
· Any other information that is relevant.
We confirm that our request for information he said that we may review your inquiry further and it is not an offer of representation nor have we been engaged to act for you at this time.
Once we receive the above information we will review and let you know if we can assist you.
As discussed, there are strict time limits that apply to applications with the Fair Work Commission. In particular, I note that applications relating to a dismissal such as an unfair dismissal or general protections application, must be filed within 21 days of the date of dismissal. Consequently, it is understood that you will make the application yourself today.
We look forward to receiving the information for our review.
(Emphasis in original)
At approximately 6:57pm on 31 October 2024, the Applicant made the application through the Commission’s Online Lodgment Service (OLS).
On 15 November 2024, the Applicant requested an “assessment report on my current condition and diagnosis” from his treating psychologist.
On 20 November 2024, the Applicant’s nominated treating doctor provided the Applicant with a letter confirming his diagnosis and stating that as a result of that diagnosis, the Applicant avoids going to the Respondent’s premises and that the Applicant “struggles to concentrate at work and as a result his performance is adversely affected.”
On 21 November 2024, the Applicant’s treating psychologist provided a letter confirming his diagnosis, symptoms, and dates he has attended consultations. The letter does not make any statement in relation to the Applicant’s capacity.
On 16 December 2024, the Applicant’s treating psychologist provided a further report to the Applicant’s workers compensation lawyer. In relation to the Applicant’s capacity, this report stated that the Applicant “does not have the capacity to work at Woolworths.”
Exceptional Circumstances
The FW 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.[2] 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.[3]
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[4]
I now consider these matters in the context of the application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]
The Applicant relies on three reasons for the delay:
·Medical incapacity;
·Seeking advice/Delay by Lawyer; and
·Lack of knowledge of the 21-day period
Medical Incapacity
The Applicant submitted that as a result of his medical condition and the bullying and harassment he was subjected to during his employment, he was unable to comply with the 21-day time limit.
The Applicant submitted that under ‘normal circumstances’ he would have quickly searched online for information about unfair dismissal and the applicable time limit.
In support of these submissions, the Applicant relied on the decision in John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group,[6] (Fortezza), where Deegan C accepted medical evidence in the form of a letter from the Applicant’s treating psychologist which stated that Mr Ovenden was suffering from “depression and anxiety exacerbated by work stress” and that Mr Ovenden suffered from “an intellectual impairment”.[7]
In Victor Blanco v White Bathroom,[8] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted]
In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd,[9] a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
In Woolworths Limited v Lin,[10] a Full Bench of the Commission found that medical evidence that was generalised and did not address an applicant’s capacity to make an unfair dismiss application was not sufficient to explain the reason for the delay.[11]
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to make an application within the statutory time limit and that an applicant’s self-assessment of their medical or psychological incapacity is unlikely to be sufficient.
Turning to the circumstances of this matter, I do not accept that medical incapacity is an acceptable explanation or reason for the delay for the following reasons.
First, there is no medical evidence that speaks to the Applicant’s incapacity to make the Application within the 21-day period. The extent of any medical evidence is that the Applicant did not have capacity to work, or did not have capacity to work for the Respondent. This matter can be distinguished from the facts in Fortezza where there was evidence of an intellectual impairment.
Second, that a medical practitioner declares a person to be suffering from a relevant condition does not require the Commission to conclude that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[12] The opinion of a person’s medical practitioner is a relevant consideration to be taken into account together with all the other available information before the Commission[13]
Third, during the period of incapacity, the Applicant was able to correspond with the Respondent prior to his dismissal and in the period following 3 September 2024, when notice of dismissal was given, and following his dismissal participate in telephone discussions and correspond in writing with his workers compensation lawyer and employment lawyer.
Fourth, the Applicant agreed that in the period of 11 September 2024 to 31 October 2024, he had access to the internet and was able to conduct searches and/or use the internet. This included searching for an employment lawyer and lodging the online enquiry.
Fifth, the Applicant ultimately accessed the Commission’s OLS and made the Application on 31 October 2024 during a period in which the Applicant contends he was incapacitated and there was no evidence of any improvement to his condition.
Seeking advice/Delay by Lawyer
I accept that the Applicant’s workers compensation lawyer advised the Applicant that an employment lawyer was required. However, that was in relation to all the matters that the Applicant sought advice on. While there is only limited evidence before me, it is apparent that the Applicant and his workers compensation lawyer discussed employment related claims beyond an application for unfair dismissal which have much longer limitation periods.
To the extent that the Applicant contends that he needed legal advice before he could make the Application, that is not an acceptable or reasonable explanation for the delay.[14] The making of an unfair dismissal application is not a complex process. It is a process that many self-represented applicants navigate on a regular basis and the Commission’s website has a range of information to assistant self-represented parties. As stated in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
(Emphasis added)
I also do not accept the workers compensation lawyer’s delay in responding to the Applicant is an acceptable or reasonable explanation for the delay. The Applicant agrees that he did not instruct that lawyer to make an application. However, if the delay in responding could be described as representative error, then the conduct of the Applicant is a central consideration.[15] In this respect, the Applicant accepted that he failed to follow up with his workers compensation lawyer until 24 October 2024.[16]
Lack of knowledge of the 21-day period
It is apparent that the Applicant was aware of unfair dismissal laws. However, to the extent that the Applicant was not aware of the 21-day period, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[17]
Reason for the delay – conclusion
For the reasons set out above, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. 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
It is not in dispute, and I so find that the Applicant was aware that his dismissal took effect from 11 September 2024. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[18]
In Hunter Valley Developments Pty Ltd v Cohen[19], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[20]
On 5 September 2024, the Applicant sent correspondence stating that he will be taking this matter “to court for unfair termination”.[21] I am satisfied that this correspondence put the employer on notice that the dismissal would be contested.
This factor weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. 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, I am not satisfied that there are exceptional circumstances, 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 under s.394(3).
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
J. Patel the Applicant.
J. Zadel with C Heep for the Respondent
Hearing details:
2024.
Sydney:
20 December.
[1] Exhibit A1 – Applicant’s Submissions and Annexures; Exhibit A2 – Applicant’s Reply Submissions and Annexures; Exhibit R1 – Respondent’s Bundle of Documents.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] [2010] FWA 3863.
[7] Ibid at [15].
[8] [2021] FWC 4694 at [44]-[51].
[9] [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[10] [2018] FWCFB 1643
[11] Ibid at [67].
[12] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[13] Ibid.
[14] Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [59]-[63]; Jaegar v Traffic Diversions Group[2016] FWC 1231 at [14]-[15], [27]-[28].
[15] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[16] Exhibit A1 (Hearing Book at p.34).
[17] Nulty at [14].
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[19] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[20] Ibid at [19].
[21] Exhibit R1 (Hearing Book at p.83).
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