Jenna Watson v Healthcare Imaging Services (Victoria) Pty Limited
[2023] FWC 2657
•26 OCTOBER 2023
| [2023] FWC 2657 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Jenna Watson
v
Healthcare Imaging Services (Victoria) Pty Limited
(C2023/4871)
| COMMISSIONER JOHNS | MELBOURNE, 26 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.
Introduction
Ms Jenna Watson (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act). The dispute arises out of the Applicant’s contention that she was dismissed from her employment with Healthcare Imaging Services (Victoria) Pty Limited (Respondent) in contravention of Part 3-1 of the FW Act.
The Respondent has objected to the application on the ground that it is out of time.
Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.
Background
The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:
a)On 1 May 2023, the Applicant commenced her employment with the Respondent.[1]
b)On 14 July 2023, the Applicant was provided with a termination letter noting her employment will be terminated on 21 July 2023.[2]
c)On 12 August 2023 at 00:12am, the Applicant sent an email to the Commission attaching five (5) photos capturing pages 1, 2, 3, 4 and 6 of the form F8 application.[3] In the body of her email, the Applicant also provided her own and the Respondent’s contact details, as well as the Respondent’s legal name, trading name and ABN.[4]
d)On 14 August 2023, the Applicant sent a further email to the Commission attaching a word document with responses to questions 3.1 and 3.3 of the application, as well as a photo of the termination letter.[5]
e)On 16 August 2023, the Commission sent a letter to the Applicant noting the application filed was incomplete.
f)On 17 August 2023, the Commission contacted the Applicant via her nominated phone number, but the call could not be connected.
g)On 30 August 2023 at 9:53am, the Commission contacted the Applicant via her nominated phone number and left a voice mail.
h)On 30 August 2023 at 2:04pm, the Applicant sent an email to the Commission filing her application in full.[6]
On 7 September 2023, the Commission sent a letter to both the Respondent and the Applicant notifying each that the application appeared to be out of time.
j)On 8 September 2023, the Applicant sent an email to the Commission providing her reasons for the delay (formalities omitted):[7]
‘I hope this email finds you well. I am writing to provide an explanation for the delay in lodging my application, which was due before end of 11/8/2023. Unfortunately, I encountered a series of unforeseen challenges that caused this delay.
Firstly, I was seeking medical advice and support to make an important decision related to my application. This required several appointments and consultations, which took longer than anticipated. I prioritize making wellinformed decisions, and in this case, it was crucial for my overall well-being and the quality of my application.
Secondly, when I attempted to submit my application online on 11/8/2023, I encountered technical issues with your website. Despite repeated attempts, I was unable to complete the submission process due to system errors and slow response times. I have attached supporting screenshots documenting these issues for your reference. Lastly, when I was able to get the hard copy of my application on hand, I attempted to send my application files via email to on my phone to as an alternative and before the end of 11/8/2023 lodgement cut off to address [email protected] . It was then I received an error message indicating that the files were too large to be transmitted successfully. This prompted me to review and work out how I could get the files compressed to a size that wouldn’t bounce on sending, which also contributed to the delay.
To ensure the timeliness and accuracy of my application, I wanted to provide this detailed explanation for the delay. I understand the importance of adhering to deadlines and apologize for any inconvenience this may have caused.
Enclosed with this email, please find attached documentation/images to support the information in this email. I do kindly request your consideration and empathy regarding the extension to the submission deadline timeframe noting the circumstances and unforeseen technical obstacles faced which saw my application lodged just shy of time and allow for the proper review and processing of my application.’
k)The Applicant provided two screenshots.[8] The first was a screenshot of an automated email sent from the Commission on 11 August 2023, requiring the Applicant to complete the registration process of her online account by verifying her email address.[9] The second was a screenshot of the online lodgment website with the error that the email account has not been verified.[10] In that screenshot the Applicant had written she tried multiple times to verify her email address to no avail.
l)On 14 September 2023, the Respondent filed its response form. It raised a jurisdiction objection, on the basis that the application filed was out of time.[11]
m)On 25 September 2023, the application was allocated to my Chambers. On the same day, I issued directions and listed the matter for an extension of time hearing on 3 October 2023. The Applicant and the Respondent were provided until 4pm on 29 September 2023 to provide any evidence, submissions or documents in support of why an extension of time should or should not be granted. The parties did not file any material.
n)On 3 October 2023, the Applicant requested an adjournment to the extension of time hearing. After considering the reasons proffered by the Applicant, I granted the adjournment and re-listed the matter on 12 October 2023.
o)On 4 October 2023, given the adjournment of the hearing, the Applicant was provided with another opportunity to file material in support of her position by 4pm on 9 October 2023. The Applicant was specifically asked to provide all emails received from the Commission during the sign up process, all emails sent to the Commission and their associated error messages about the file size and any other relevant material. The Respondent was granted the liberty to also file material if it wished to do so.
p)On 9 October 2023, the Applicant sent an email attaching a letter from an ex-employee of the Respondent relating to the merits of the application. The Respondent did not file anything.
q)On 10 October 2023, an email was sent from my Chambers to the parties’ attaching two decisions of the Commission.[12] The Applicant was put on notice that in line with the consideration in s.366(2)(e) of the FW Act, the Commission must have regard to fairness as between the Applicant and other persons in a like position. The email noted that in the attached two decisions of the Commission, it appears that in similar circumstances, the Commission has declined to grant an extension of time. Therefore, the Applicant was invited to provide written reasons or oral submissions as to why her application should be distinguished.
r)The extension of time hearing proceeded on 12 October 2023.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the Applicant lodged her application on 12 August 2023 at 00:12am, albeit incomplete.
The Respondent in its response form contended that the complete application was dated 29 August 2023 and thus it was late in excess of two weeks.[13] Whilst the Respondent did not press this position in any further submissions or during the hearing, it is necessary for me resolve this contest for the sake of completeness. Therefore, I must determine whether the incomplete nature of the application rendered it invalid.
In a previous Full Bench decision of the Commission dealing with similar circumstances, it was found that an incomplete form F8 could still be valid (footnotes omitted):[14]
‘[32] An examination of the substance, as distinct from the form, of what Mr Arch did on 22 May 2019 makes it clear that he lodged a general protections dismissal application. We have described the documents which Mr Arch lodged on 22 May 2019. In short, he electronically filed a partial Form F8 missing (we presume by accident) the first three pages. The partial document leaves no room for doubt that it was intended to be a general protections dismissal application. Although, because of the missing pages, the document did not identify the respondent or the dismissal the subject of the application, the accompanying documents (in particular the termination letter) made it clear that the application concerned Mr Arch’s dismissal from his employment with IAG on 30 April 2019.
…
[34] It is undoubtedly the case that Mr Arch did not file an application in the prescribed form on 22 May 2019. Section 585 of the FW Act requires that “An application must be in accordance with the procedural rules (if any) relating to applications of that kind.” But, as has been explained in a number of Full Bench decisions, non-compliance with s 585 does not invalidate an application because the FW Act confers discretionary procedural powers as to how to deal with such an application…’
In a recent decision of the Commission, Deputy President O’Neill accepted a blank form F8 application as a valid application and made the following observations (footnotes omitted):[15]
‘[26] The Commission regularly deals with applications that are incomplete or where the prescribed fee is unpaid (or not waived) at the time the application is made. The degree of incompleteness also varies significantly from an unpaid application fee at one end of the spectrum, to most if not all relevant information not being provided at the other end. Applicants in these instances are generally advised that they need to provide a complete application and that if they fail to do so, their application may be dismissed. A significant number of applications are subsequently dismissed pursuant to s.587 of the Act, following unsuccessful attempts to contact the applicants to provide the missing information. Such decisions are made on the basis that whilst incomplete, they are nonetheless valid ‘applications’ that then need to be dismissed. The extent of the incompleteness can be seen for example in Josh Bolton where the application omitted the respondent’s details, the date the applicant commenced employment, the reasons given for the dismissal or why the dismissal was alleged to be unfair, and the application fee was not paid and no waiver form completed. In Hart-Reid v Queensland Health a s.739 application did not include the respondent’s details, the applicable industrial instruments, or the relevant dispute settlement procedure under which the application was brought. In Devereux v Catholic Early EdCare the respondent’s details were not provided.
[27] Even where completed applications are lodged, the level of ‘completeness’ varies dramatically from a comprehensive, detailed document fulsomely answering all questions, to applications where information is missing, or minimal, irrelevant or incorrect. There is no mandated standard of completion.
[28] It is difficult to discern a basis, for the purposes of s.366, for treating an application form that is blank as not being an application, but an application form that is missing or contains incorrect essential information is an application. The lack of a meaningful distinction between the two is particularly significant given the Commission is not a Court, is statutorily obliged to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, and is not bound by the rules of evidence and procedure. In the context of a relatively short period in which to make an application of 21 days, a generous and purposive construction of what it means to ‘make an application’ is to be preferred. In my view, the blank application submitted within time is not necessarily to be treated as being entirely invalid and of no effect.’
In the matter before me, the incomplete application similarly had all the hallmarks of a general protections involving dismissal application. Therefore, in light of these authorities, I am satisfied that the incomplete application filed on 12 August 2023 at 00:12am to be a valid application (albeit late).
When did the dismissal take effect?
The termination letter was dated 14 July 2023 and stated as follows:
‘I have decided to relieve you of the requirement to work your notice period and instead pay you 1 weeks’ pay in lieu of working the required notice period and any outstanding accrued entitlements. Your employment will be terminated on 21 July 2023.’
Ordinarily when a payment in lieu of notice is made, the dismissal takes effect immediately.[16] However, in this case the Respondent specified a different date of dismissal.
In light of the same, it is not in dispute, and I so find, that the dismissal took effect on 21 July 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, ‘[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.’[17]
As I found above, the dismissal took effect on 21 July 2023. The final day of the 21-day period was therefore 11 August 2023 and ended at midnight on that day. The application was made on 12 August 2023 at 00:12am. The application was made 12 minutes late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[18]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 11 August 2023. The delay is the period commencing immediately after that time until 12 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[19]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[20]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[21]
Submissions and evidence
The Applicant’s written reasons were in twofold, namely the delay in seeking medical advice, and alleged technical difficulties with the account sign up process and her email.[22] The Applicant also submitted before me that she was unaware of the relevant application until on or about two weeks after the dismissal and upon its discovery she had to complete the application by herself whilst navigating the ‘legal jargon’.
In relation to the reason for the delay, the Respondent submitted that the Applicant could have submitted her application earlier, but she did not do so.[23]
Findings
In relation to the first reason for the delay, being the wait for the medical advice, there was no medical certificates or other material filed by the Applicant attesting to the same. The Applicant was provided with two separate opportunities to file such material and she did not do so. That is a matter for the Applicant. In the absence of any evidence, I am not prepared to accept the first reason as a valid reason for the delay.
In relation to the second reason for the delay being the alleged technological difficulties, there being no evidence to the contrary, I am satisfied that the Applicant likely encountered some technical difficulties during the sign up process. However, there are two problems with this explanation.
First, the Commission’s records show that the Applicant created her account at 10:54pm on 11 August 2023. Therefore, the Applicant afforded herself some 66 minutes to complete the registration process and lodge her form F8 application. Secondly, the Applicant allegedly attempted to file her application via an email ‘before the end of’ the deadline but was unable to do so, due to the size of the email and its attachments which resulted in a bounce back.[24] However, this latter technical difficulty was not the fault of the Commission. In any event, the Applicant did not provide a copy of this alleged email as she was specifically invited to do so on 4 October 2023. Therefore, the first bona fide attempt by the Applicant to lodge her application is her email received by the Commission on 12 August 2023 at 00:12am.
In relation to the third reason for the delay being the Applicant’s alleged unawareness of the application, mere ignorance of the statutory time limit is not an exceptional circumstance in the absence of other circumstances.[25] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd, the Full Bench of the Commission noted that:[26]
‘Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. 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.’
In any event, if the Applicant became aware of the deadline on or about two weeks following the dismissal, she still had the benefit of the remainder of the 21 days period. Nevertheless, she still waited until the eleventh hour.
As noted in the chronology of the matter above, the Applicant was referred to two decisions of the Commission where similar circumstances occurred.
In the first matter of Gail Miller v DPV Health Ltd[2019] FWC 3979 (DPV), the Applicant proffered three reasons for her one (1) day delay, namely financial strain, representative error and technical difficulties.[27] In relation to the technical difficulties, the Applicant stated that she found the website difficult to navigate and the system freezing at times.[28] Deputy President Coleman was not satisfied that the reasons proffered were acceptable nor reasonable, instead observing as follows:[29]
‘[18] I accept Ms Miller’s submission that she made ‘several genuine attempts’ to make the application before the expiry of the 21 day period. However her efforts to lodge the application online were made literally at the ‘eleventh hour’, post meridian. Prior to this, she had wanted a particular lawyer to check her application, whom she knew would likely have a conflict. She did not need to use a lawyer, let alone this particular lawyer. She could have lodged the document herself, as she eventually did. She could have represented herself in the matter, as she has done before in this Commission. There was no representative error. The online lodgement difficulties she encountered are not exceptional. And she could have lodged her application by email on time, at any time, rather than one day late. I reject Ms Miller’s contention that there were reasons ‘beyond her control’ that caused her application to be lodged out of time. This is not the case.’
In the second matter of Thai Luu v Employsure Pty Ltd[2021] FWC 2599 (Employsure), the Applicant proffered mental health issues which were supported by evidence, and technical difficulties as reasons for his one (1) minute delay.[30] Commissioner Yilmaz was not satisfied that the reasons behind the delay were exceptional nor unusual, and observed:[31]
‘[28] The medical evidence demonstrates that Mr Luu was suffering a severe form of anxiety that impacted his capacity to perform his duties, however, the evidence does not confirm whether he was in such a state to prevent him from making an unfair dismissal application. The evidence shows that Mr Luu had made an effort to file an application commencing at 6:30pm but did not succeed until 12:01am. Mr Luu does not submit there were internet connectivity issues, rather his difficulty was with the timing out function. From the evidence I am not satisfied that Mr Luu’s delay is not exceptional or unusual, the delay in filing the application occurred because he waited until the 21st day and the timeout function occurred due to inaction for more than 20 minutes while on the online system.’
In relation to the matter before me, the Applicant also neglected in filing her application until literally the eleventh hour. In doing so, the Applicant did not leave any time for possible technological difficulties. Had the Applicant done so, the technological issues would have been identified earlier and consequently the incomplete application may have been sent to the Commission within time. The difficulties encountered by the Applicant were anything but unforeseen as alleged. In light of the same, the online lodgment difficulty and email size issue may well be characterised as unexceptional, rather than exceptional.
Overall, I am not satisfied that the reasons for the delay are exceptional. The Applicant could have filed her application earlier but she chose not to do so.
Having regard to the above, I find that the reasons for the delay weigh against granting a further time in filing of the application.
What action was taken by the Applicant to dispute the dismissal?
It has been affirmed in a recent Full Bench decision of the Commission in Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133 (Spenser), that for this factor to be enlivened, there is no need for the applicant to engage in any formal internal process.[32] But rather a mere email correspondence putting the respondent on notice that it disputes the dismissal may weigh in an applicant’s favour.
Submissions and evidence
The Applicant conceded before me that she did not take any action to dispute the dismissal because she understood the dismissal to be final.
The Respondent did not engage with this factor.
Findings
Having regard to the evidence and the concession made by the Applicant, I find that the Applicant did not take steps to dispute her dismissal, and this weighs against granting a further time in filing of the application.
What is the prejudice to the employer (including prejudice caused by the delay)?
Before me the Respondent appropriately conceded that it would not suffer prejudice if an extension of time were granted.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. However, at the same time the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’.[33] Therefore, this is a neutral factor in deciding whether to grant an extension of time.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Submissions and evidence
The Applicant indicated in her application that the Respondent contravened s.340 of the FW Act by dismissing her when exercising her workplace right in filing a complaint and then seeking to have a conflict resolution process actioned fairly and in line with the policies of the Respondent.[34]
The Respondent noted that it was unaware of any formal complaint being lodged with management and submitted that the reason for termination was for unsatisfactory work performance during the Applicant’s probationary period and nothing else.[35]
Findings
The Applicant did not clearly articulate the nature of the complaint, what it entailed, when it was made and/or against whom it was made. The submissions were largely general statements which may have been copied and then pasted from a different source. In any event, the Respondent submitted that it was aware of the Applicant being defensive in relation to her supervisor but when prompted for further details, she could not identify any specific issues.[36]
Having regard to the matters raised by the Applicant and the Respondent, I find that they necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make a determinative assessment of the merits of the application.
However, having regard to the requirements of a general protections claim, in all the circumstances, I find, on a preliminary assessment basis, that the merits of the application before me are weak.
This is because, in the facts as I understand them (on a preliminary basis), there is nothing to suggest a causal link between the alleged workplace right and the dismissal.[37]
I find that, even on the most generous view of the Applicant’s submissions, the application is weak. Therefore, this factor weighs against granting a further time.
Fairness as between the Applicant and other persons in a similar position
As a Full Bench has noted in Perry v Rio Tinto Shipping[2016] FWCFB 6963:[38]
‘…this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [Applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.’
Submissions and evidence
As noted in the chronology of this matter, the Applicant was provided with two decisions of the Commission and invited to address them in line with s.366(2)(e) of the FW Act. The Applicant confirmed before me that she did read those two decisions.
The Applicant submitted before me that her application should be distinguished because:
essentially her circumstances are different to those two matters, and that consequently, the outcome in those matters should not prejudice my decision in her matter;
the technical difficulties were out of her hands;
she had to complete the application by herself whilst navigating the ‘legal jargon’; and
she was not aware of the general protections application.
The Respondent did not directly engage with this factor.
Findings
The first submission of the Applicant is in direct contradiction with s.366(2)(e) of the FW Act and cannot be accepted. As I indicated to the Applicant in the hearing, this factor aims to ensure public confidence that the Commission treats similar matters in the same way.
The second, third and fourth submissions of the Applicant have been addressed in the reason for the delay section of my decision.
The Full Bench decision of Spenser provided as follows as to the operation of s.366(2)(e):[39]
‘[39] The s. 366(2)(e) fairness consideration required a comparison between the Appellant and other persons in a like position. This required the Commissioner to identify the comparator. No other person was identified nor are the circumstances pertaining to any other person(s) in connection with an application to the Commission set out. Without that, one cannot identify whether the comparator is or was in a like position to the Appellant. A general reference to other applicants who have advanced similar submissions or are in similar circumstances and whose applications were not granted without the comparators or their circumstances articulated is respectfully erroneous and an approach that visited unfairness on the Appellant based on general impressions about results in other cases that facts of which are unarticulated.’
In light of the same, I note that the most relevant comparator is that set out by Commissioner Yilmaz in Employsure. In Employsure, the Applicant’s extension of time application was dismissed despite a medical certificate and the delay only being a mere one (1) minute. In the matter before me, the only substantiated reason for the delay is the technological difficulties.
Although the Commission is not bound by the principle of stare decisis it is apparent that if an extension of time was granted in the present matter it would not be fair to applicants who have previously come before the Commission (in particular the comparator as set out in the case of Employsure) and have similarly had their extensions of time rejected.
Having regard to those matters, I find that this factor weighs against granting a further time.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[40] 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.[41]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An order to that effect will be issued separately [PR767164].
COMMISSIONER
Appearances:
Ms J Watson on her own behalf
Ms K Mullally on behalf of the Respondent
Hearing details:
2023
Melbourne (Video using Microsoft Teams)
12 October.
[1] Digital Tribunal Book (DTB), Exhibit 3, p 19.
[2] DTB, Exhibit 3.3.
[3] DTB, Exhibit 1.
[4] Ibid.
[5] DTB, Exhibit 2.
[6] DTB, Exhibit 3.
[7] DTB, Exhibit 5.
[8] Ibid.
[9] DTB, Exhibit 5.1.
[10] DTB, Exhibit 5.2.
[11] DTB, Exhibit 4.
[12] Gail Miller v DPV Health Ltd[2019] FWC 3979; Thai Luu v Employsure Pty Ltd[2021] FWC 2599.
[13] DTB, Exhibit 4, p 37.
[14] Shane Arch v Insurance Australia Group Services Pty Limited[2020] FWCFB 601, [32] & [34].
[15] Amy Brunskill v Federation Children Nth Geelong Pty Ltd[2023] FWC 1756, [26]-[28].
[16] Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].
[17] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]; See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[19] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[21] Ibid, [40].
[22] DTB, Exhibit 5.
[23] DTB, Exhibit 4, p 37.
[24] DTB, Exhibit 5.
[25] Nulty v Blue Star Group[2011] FWAFB 975; See also Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[26] Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[27] Gail Miller v DPV Health Ltd[2019] FWC 3979, [8]-[19].
[28] Ibid, [15].
[29] Ibid, [19].
[30] Thai Luu v Employsure Pty Ltd[2021] FWC 2599, [22].
[31] Ibid, [28].
[32] Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133, [35].
[33] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[34] DTB, Exhibit 3.2, p 26.
[35] DTB, Exhibit 4, p 40.
[36] Ibid.
[37] See Garson v Urban Land Authority [2013] FWC 6586.
[38] [41].
[39] Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133, [39].
[40] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[41] Ibid.
Printed by authority of the Commonwealth Government Printer
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