Jeremy Snyder v Helena College Council, Inc. T/A Helena College

[2018] FWC 4432

[2018] FWC 4432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(U2018/3043)

COMMISSIONER GREGORY MELBOURNE, 27 JULY 2018

Application for an unfair dismissal remedy – jurisdictional objection – extension of time – reasons for delay – merits of application – no exceptional circumstances – application dismissed.

Introduction

[1] Mr Jeremy Snyder was employed by Helena College Council, Inc. T/A Helena College (“the College”) as an Indonesian teacher from the beginning of 2016 until the College claims he accepted a redundancy package on 25 January this year. However, Mr Snyder claims his termination was not a case of “genuine redundancy,” and has since lodged an unfair dismissal application. He also claims there is some uncertainty about the actual date of his termination.

[2] His unfair dismissal application was lodged with the Fair Work Commission (“the Commission”) on 22 March 2018. The College claims, in response, that it was not lodged within the 21 day period provided for under the Fair Work Act 2009 (Cth) (“the Act”), and should therefore be dismissed. As indicated, Mr Snyder claims the actual date of his termination is unclear, but continues to submit that if the Commission finds the application was lodged outside of the 21 day time period then it should exercise the discretion available to it to grant additional time in which to make application. This decision deals with those matters.

[3] If the Commission finds that the application was lodged within time, or it concludes that it should exercise the discretion available to it to grant additional time if it was not lodged within time, then the application will be relisted to enable Mr Snyder’s substantive unfair dismissal application to be heard and determined. However, if the Commission finds that the application was lodged outside of the 21 day period, and it is not appropriate to exercise the discretion to extend time in which to make application, then application must be dismissed.

[4] The hearing was conducted by telephone. Mr Snyder appeared on his own behalf. Mr Michael Papali, the Business Manager with the College, appeared on its behalf.

The Issue to be Determined

[5] The Act provides that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) also provides that the Commission may extend the time in which to make application if it believes there are “exceptional circumstances” that warrant an exercise of this discretion taking into account each of the following considerations:

“(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;

(f) fairness as between the person and other persons in a similar position.” 1

[6] The Commission is accordingly required to first determine whether Mr Snyder’s unfair dismissal application was filed within the 21 day time period. If it finds that it was not then it is required to determine whether there are “exceptional circumstances” that warrant an exercise of its discretion to grant additional time in which to make application, having regard to the various considerations in s.394(3).

The Evidence and Submissions

Mr Jeremy Snyder

[7] Mr Snyder said he was told for the first time that he had been selected for a reduction in hours on 4 December last year. It was indicated that he might be redeployed, which was described as “a partial redundancy”, 2 or that he might be made redundant, which was described as “a full redundancy”.3 A series of further discussions then took place about these circumstances and, on 22 January, Mr Snyder made a formal complaint to the Chair of the School Council about the process of consultation that had been gone through. He was then provided with what he describes as “a Notice of Termination”4 on 23 January 2018, which did not specify a date of dismissal.

[8] He then sent a further letter on 25 January 2018 setting out the reasons why he considered his relationship with the Principal to be “irreparable”. 5 The College then provided him with what he described as a “second Notice of Termination”6 on the same day, which again did not specify the actual date of his termination.

[9] Mr Snyder then sent an email to the College on 30 January seeking further compensation but did not receive a response. On 10 February 2018 he lodged an unfair dismissal application with the Western Australian Industrial Relations Commission (“WAIRC”). The College then lodged a jurisdictional objection to that application 21 days later on the basis that it is a National System Employer and it was accordingly not appropriate for the application to be made in the State Commission.

[10] Mr Snyder states in response, “I applied to the WAIRC because Helena College had falsely represented that the Helena College (Inc) Collective Agreement 2014 applied to my employment in my Employment Contract …. when they are actually a National System Employer and this Agreement did not apply to my employment.” 7 He refers to a letter given to him on 20 October 2015 by the Principal of the College confirming his successful application to a teaching position at the College. The relevant extract from the letter states, “All teaching staff at Helena College are covered under the College registered agreement which details information pertaining to wages and conditions of employment. A copy of this is also available on Complispace.”8 He also indicated in his oral submissions that his Union representative had told him that the State Commission “was the appropriate forum for me”9 because the College was a State System Employer. He also agreed in response to a question from the Commission that it was a combination of his uncertainty about the actual position, and the advice from his Union, that led to him initially making application to the WAIRC.10

[11] Despite having raised its jurisdictional objection the College then agreed to participate in a conciliation conference at the WAIRC, and this was conducted on 22 March. However, an agreed outcome was unable to be reached in those discussions. Mr Snyder then lodged an unfair dismissal application with the Fair Work Commission on the same day. He reiterates that his application was originally made to the WAIRC because the College had misrepresented itself as a State System Employer when it was actually a National System Employer. It then contributed to the delay in dealing with that application because of the time it took to provide its response.

[12] Mr Snyder also made reference in his submissions to the decision in Palmer v RCR Engineering Pty Ltd 11 in support of him being provided with an extension of time in which to make application.

[13] He also indicated in his oral submissions that there are four different possibilities in regard to the actual date of his dismissal. He suggested that the first date could be 25 January 2018, although it could also have been the next business day, being 29 January 2018. He also suggested that the date could be 2 February 2018, because it was referred to in the letter dated 25 January sent to him by the College. He also submits that the actual date could be 19 March, given that was the end of the 7 week notice period referred to in the letter of 23 January sent to him by the College.  12

[14] Mr Snyder also submits that his termination was harsh, unjust or unreasonable because it was never made clear why he had been selected for redundancy in circumstances where his dismissal was not related to capacity or performance. The two letters from the College, dated 23 and 25 January 2018, also provided inadequate information about what was being proposed. In addition, the processes of consultation about his redundancy were inadequate, and the discussions did not deal comprehensively with what other options might be available to him. He also submits that in the meeting in December last year, when these issues were first discussed, he was told by Mr Michael Papali, the Business Manager at the College, that he was being dismissed which left little room for consultation about any other options.

Helena College

[15] The College submits that the number of students wishing to learn Indonesian left a teaching load in 2018 of between 0.5 and 0.6 FTE. 13 It accordingly initiated discussions with Mr Snyder in December last year based around him excepting a partial or a full redundancy. The first meeting was held on 4 December, and a second meeting on 7 December, which Mr Snyder attended with his Union representative. Details about the potential redundancy package were provided in the second meeting and there were then a series of further exchanges about the details involved. The options involved him excepting a reduced teaching load, which was described as a partial redundancy, or him leaving his employment after working out his notice period, which was described as a full redundancy.

[16] He was also provided with a detailed three-page letter from the Principal of the College on 10 January, which provided responses to the various issues previously raised by both Mr Snyder and the Union. A copy of that correspondence was also sent to his Union representative. He was then asked to provide confirmation by 12 January 2018 about which option he wished to take up.

[17] The College submits that Mr Snyder then advised that he did not wish to take up the option of partial redundancy. It was then made clear to him that if he was to take up the full redundancy option then the notice period of 7 weeks would need to be worked out as the College was not in a position to be able to afford the cost of a relief teacher. 14 However, the College then decided that the period of notice would not be required to be served, and a further letter was sent to him on 25 January confirming his acceptance of the full redundancy option, and indicating he would not be required to work out the notice period. He would instead receive pay in lieu of notice.

[18] Mr Papali indicated in his oral submissions that this decision was finally made because of the ongoing issues between the College and Mr Snyder and “…..in the interests of the children’s and the welfare of staff we are better off issuing a payment in lieu as against requesting the applicant to serve his notice period.” 15 The College is accordingly of the view that 25 January 2018 is the date of Mr Snyder’s termination of employment.

[19] The College also submits that nothing prevented Mr Snyder from making application to the Fair Work Commission within the 21 day period after he was terminated, and it was not responsible for him having first made application to the WAIRC. It also submits that his unfair dismissal claim does not have merit. It highlights in this context the protracted discussions that took place involving the College and Mr Snyder, together with his Union representative, in regard to the different options being considered during that process. It also submits that Mr Snyder has had the benefit of not being required to work out his notice period and instead receiving a lump sum as pay in lieu.

Consideration

[20] The first issue to be determined in this matter concerns the date of Mr Snyder’s termination. I am satisfied in response that the two separate pieces of correspondence sent by the College to him on 23 and January and 25 January 2018 are critical to the determination of this issue.

[21] The first letter is from the Principal of the College and is headed “RE: ACCEPTANCE OF REDUNDANCY FOR JEREMY SNYDER – 1.00 FTE,” 16 and makes reference to his decision to take up the so-called “full redundancy” option, and confirms the College’s acceptance of this request. It continues to indicate:

“Please note that your notice period will commence from Mon , 29 Jan 2018 (Week 1, Term 1, 2018) and will finish on Fri, 16 Mar 2018 (Week 7, Term 1, 2018).”

Your FTE while serving notice period of 7 weeks in Term time will be 1.00 FTE.” 17

[22] The second letter dated 25 January 2018 is headed “RE: REDUNDANCY 1.00 FTE, FINAL PAYMENT TO JEREMY SNYDER”. 18 It states at the outset:

“Further to our letter dated 23 Jan 2018 confirming acceptance of your request to take up Full Redundancy of 1.0 FTE, we withdraw the requirement for you to work the notice period from Mon, 29 Jan 2018 (Week 1, Term 1, 2018) to Fri, 16 2018 (week 7, term 1, 2018).

Instead we have processed payment in lieu of the Notice Period through payroll, today, Fri, 25 Jan 2018.” 19

[23] It also indicates that “by prior appointment” 20 some items of property belonging to the College are to be returned by Friday, 2 February 2018.

[24] I am satisfied in response that it was originally intended when the letter of 23 January was sent to Mr Snyder that he would work out the notice period associated with him being made redundant. However, it was subsequently decided, and confirmed that, in the letter of 25 January, he would no longer be required to work out that notice period, and he would instead receive a lump sum payment in lieu of notice. I am satisfied that, as a consequence, Mr Snyder’s employment was terminated with effect from 25 January 2018. He was not required at work after that time and received a payment in lieu of notice at that time. His employment accordingly ended on that date.

[25] The date of 16 March 2018 no longer had any relevance as a consequence of the letter of 25 January overriding the arrangements proposed in the letter of 23 January, which would have involved Mr Snyder working out his notice period. In addition, the only relevance of the date of 2 February is that it was the date by which Mr Snyder was to return any outstanding College property. It is not relevant in the context of when his employment can be said to have been terminated.

[26] I am also satisfied that the evidence indicates Mr Snyder understood his employment had been terminated on 25 January because he then made application on 10 February to the WAIRC claiming to have been “harshly, oppressively or unfairly dismissed.” 21

[27] Having come to the conclusion that Mr Snyder’s employment was terminated with effect from 25 January 2018 it follows that his unfair dismissal application to the Fair Work Commission was lodged well outside of the 21 day time period. The Commission is accordingly now required to consider whether it is appropriate to grant Mr Snyder additional time in which to make application. As indicated, in considering whether to exercise the discretion to grant an extension of time the Commission must have regard to each of the matters in s.394(3) in deciding whether “exceptional circumstances” exist to warrant an exercise of that discretion.

[28] It is also noted that previous decisions of the Commission and its predecessors have given consideration to what is required to find that “exceptional circumstances” exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (“Nulty”) 22 was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application in considering whether “exceptional circumstances” can be said to exist. The relevant extracts from the Full Bench decision in the context of this application are set out at [13] and [14] in the following terms:

“[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.

[14] 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.” 23

[29] The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. It also indicates they are circumstances that are out of the ordinary course, or are unusual, special or uncommon. However, they need not be unique, unprecedented, or very rare, but are not circumstances that are regularly, routinely, or normally encountered. I now turn to deal with this matter, and the evidence and submissions of the parties, having regard to both these authorities and the matters in s.394(3) I must take account of.

(a) the reason for the delay

[30] Mr Snyder submits that the reason for the delay in making application was because he initially made application on 10 February to the WAIRC believing the State Tribunal was the appropriate body because he understood the College was covered by a State-based enterprise agreement. This understanding was based on a letter given to him by the College at the time he was appointed in 2015.

[31] However, the College then raised a jurisdictional objection to his application, which is indicated to have been received by the WAIRC on 9 March 2018. The College’s “Notice of answer,”  24 which was signed by the Principal, states as follows:

“We oppose the Claim, as Helena College is an incorporated entity and is deemed to be a “National System Employer’ as it is engaged in trading activities that form a significant portion of its overall income or activity.” 25

[32] Mr Snyder also submits that the process of dealing with his application in the WAIRC was delayed because of the College’s tardiness in providing its response, which was not received until 9 March, being more than 3 weeks after he had originally made application. He also submits that he was advised by his Union representative to allow the matter to be dealt with by the WAIRC.

[33] Mr Snyder also relies on the decision in Palmer v RCR Engineering Pty Ltd, 26 which was handed down by McCarthy DP on 2 December 2009. It also involved a request for an extension of time, primarily on grounds that the Applicant had initially made application to the WAIRC, rather than to the Federal Commission. The Deputy President did exercise the discretion to extend time in which to make application in that matter. He noted in that decision that the Applicant took action to contest his termination almost immediately, but in the wrong jurisdiction. If the application had been lodged with the Federal Commission it would have been lodged well within the time allowed. There was also some delay in the Employer providing its response to the application, and it also took issue with the WAIRC’s jurisdiction to deal with the matter.

[34] McCarthy DP noted the Employer’s jurisdictional objection “first alerted the Applicant to his error,” 27 and “[i]ndeed when the applicant became aware that his application was lodged in the wrong jurisdiction he lodged an application with FWA within three days.”28 He also noted that the Respondent’s delay in lodging its notice in response, whilst not necessarily done deliberately, “did have the effect of denying the applicant to lodge his application here within the time allowed.”29 He concluded that the circumstances were accordingly “exceptional”30 and extended the time in which to make application.

[35] However, I am also aware of other more recent decisions handed down by McCarthy DP that also concern unfair dismissal applications lodged with the WAIRC when they should have been lodged in the Federal Commission.

[36] The decision in Legros v David Morris P/L as the Trustee for the Gustose Unit Trust t/as The Pantry Door[2010] FWA 4417 was handed down on 16 June 2010. It also involved an application that was initially filed in the WAIRC when it should have been lodged with Fair Work Australia, as it was then known. McCarthy DP concluded at [31]:

“[31] The facts here are that the Applicant attempted to lodge an application in the WAIRC. I do not consider that to be an exceptional circumstance. It is certainly not an uncommon occurrence and one that I regularly encounter it in matters of this type.” 31

[37] He indicated in conclusion at [33] and [34]:

“[33] The Applicant also asserted that he had gained advice prior to his lodging the application. The advice he infers was to lodge an application with the WAIRC. Regardless of who provided that advice I do not consider that to be an exceptional circumstance.

[34] Nor do I consider that a combination of those facts and the matters I must take account of are such that the circumstances are exceptional.” 32

[38] Similar circumstances were also involved in the matter of Robertson v Zeugma Electrical & Communication Services Pty Ltd 33 handed down on 17 June 2010. McCarthy DP concluded in that matter at [12] and[13]:

“[12] There is nothing exceptional about lodging in the WAIRC when the application should have been lodged in FWA. There is also nothing exceptional about the Applicant endeavouring to reconcile with the Respondent or even of having difficulty canvassing anything with the Respondent. Each of those types of reasons are regularly encountered here.

[13] The provisions of s.394(4) of the FW Act make it mandatory to lodge matters of this type within 14 days. That obligation is not absolute and may be altered if exceptional circumstances exist. The FW Act does not provide for an application to be allowed if there has been inadvertence or accident by the Applicant. If it had been intended that inadvertence or accident to allow applications to be made beyond the 14 days provided then the legislation would have reflected that intention. Those issues, i.e. accident and inadvertence, are matters that may influence whether exceptional circumstances exist but without more than is provided here it is unlikely it would constitute anything exceptional.” 34

[39] It is acknowledged that Mr Snyder originally made application to the WAIRC because he believed the College was not a National System Employer. He was also advised by his Union that it was the appropriate forum. However, it is also noted that the only reference to any suggestion about advice having been obtained from the Union is in an email from the Union representative dated 12 February 2018, which was after the time Mr Snyder lodged his application with the WAIRC.

[40] Mr Snyder was also made aware on 9 March 2018 that the College was of the view that he had made application in the wrong jurisdiction. However, he continued to allow the matter to be progressed in the State Commission and participated in a conference with the College on 22 March to explore whether some agreed resolution of the dispute could be arrived at. Mr Snyder only then made application to the Federal Commission when that conference process proved to be inconclusive.

[41] I am satisfied in response that it would have been prudent, and perhaps expected, that Mr Snyder would have made application to the Federal Commission as soon as he became aware that the College was taking issue with his ability to pursue the application in the WAIRC. However, Mr Snyder agreed to let that process play out, despite being aware that the College had raised a jurisdictional objection to the State Commission’s ability to deal with his application. If he had made application to the Federal Commission as soon as he became aware of the jurisdictional objection his application would still have been lodged out of time. However, that situation would have been more akin to the circumstances involved in the matter of RCR Engineering 35that he seeks to rely upon.

(b) whether the person first became aware of the dismissal after it had taken effect

[42] As indicated, Mr Snyder has suggested that there is some doubt about when his dismissal took effect. However, as indicated already I am satisfied that the date of his termination was 25 January 2018. I am also satisfied that while Mr Snyder might contend that there is some doubt about what the actual date of his termination was the fact he lodged an unfair dismissal application with the WAIRC on 10 February this year suggests he was already aware his employment had been terminated at that point in time.

(c) any action taken by the person to dispute the dismissal

[43] It is accepted that Mr Snyder took action to dispute his dismissal, and that he was of the view that it did not constitute a case of “genuine redundancy.” This is demonstrated by the application he first made to the WAIRC, and the subsequent application he then made to the Fair Work Commission. However, he also appeared to be pursuing what he believed were claims for outstanding entitlements due to him.

(d) prejudice to the Employer (including prejudice caused by the delay)

[44] There will always be some prejudice to an Employer if an Applicant is granted additional time in which to make application in that the Employer will then have to respond to the claim. However, I am not aware of anything else it needs to be considered in this context.

(e) the merits of the application

[45] The Commission is in no position at this time to express any concluded view about the respective merits of this matter, given the submissions and evidence now before the Tribunal. It is also noted that previous decisions of this Tribunal have determined that the Commission is not required, in proceedings of this kind, to come to a concluded view about the respective merits of an application. For example, in the decision in Kyvelos v. Champion Socks Pty Limited 36a Full Bench of the then Australian Industrial Relations Commission concluded that:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 37

[46] The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 38

[47] However, it is difficult to conclude, based on the materials now before the Commission, that Mr Snyder’s case has significant merit. There were a number of discussions held with him after it was decided that the maintenance of a full-time position could not be justified. He was also provided with some options in these circumstances. While it is accepted that Mr Snyder did not necessarily agree with the rationale for what was being proposed this does not mean that the College’s decision, and the processes put in place as a consequence of that decision, were necessarily misconceived or unwarranted.

(f) fairness as between the person and other persons in a similar position

[48] I am not aware of anything that needs to be considered in this context.

Conclusion

[49] I have had regard to all of the circumstances involved in this matter, together with the considerations in s.394 that I must take account of. In conclusion, I am not satisfied that “exceptional circumstances” exist to warrant an extension of time being granted to Mr Snyder in which to make application. It is acknowledged that he made application to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction in which to pursue his unfair dismissal claim. However, I am also satisfied that he should have been alerted to the fact he may have made application in the wrong jurisdiction when the jurisdictional objection was made to his application by the College on 9 March of this year. However, he decided to let that process play out, and only made the present application when the processes before the State Commission had been exhausted. It also appears that nothing prevented him from making application to the Fair Work Commission at any time, including immediately after 10 March of this year. I have also had regard to the decisions of McCarthy DP that had been referred to which involve circumstances that are not dissimilar to those involved in the present matter. 39

[50] I am also satisfied for the reasons indicated that the date of Mr Snyder’s termination was 25 January 2018, and there cannot be said to be any genuine confusion about that date. Mr Snyder also proceeded to lodge his unfair dismissal application after that time suggesting he was also aware at that point that his employment had been terminated.

[51] I am satisfied, firstly, that Mr Snyder’s application was lodged outside of the 21 day time period. However, I am not satisfied in all the circumstances, and after having regard to the matters in s.394(3) that I must take into account, that exceptional circumstances exist to warrant the Commission exercising its discretion to extend time in which to make application. In coming to this decision I have had particular regard to the reasons for the delay and the merits of the application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

J Snyder on his own behalf.

M Papali on behalf of the Respondent.

Hearing details:

2018.

Melbourne and Perth (via telephone):

May 25.

Printed by authority of the Commonwealth Government Printer

<PR609486>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Witness statement of Applicant, filed 28 April 2018, [5].

 3   Ibid.

 4   Ibid, [9].

 5   Ibid, [10].

 6   Ibid, [11].

 7   Ibid, [14].

 8   Attachment to Applicant’s submissions, filed 28 April 2018, “Offer of employment”, dated 20 October 2015, p 2.

 9   Transcript, 25 May 2018, PN 39.

 10   Ibid, PN 41 – PN 42.

 11   [2009] FWA 1431.

 12   Transcript, 25 May 2018, PN 32 – PN 35.

 13   Respondent’s submissions re merits, filed 10 May 2018, q [3c].

 14   Ibid, q [6a].

 15   Transcript, 25 May 2018, PN 90.

 16   Attachment to Applicant’s submissions, filed 28 April 2018, Letter from Helena College to Jeremy Snyder. “Re: Acceptance of Redundancy for Jeremy Snyder – 1.00 FTE”, dated 23 January 2018.

 17   Ibid.

 18   Attachment to Applicant’s submissions, filed 28 April 2018, Letter from Helena College to Jeremy Snyder. “Re: Redundancy 1.00 FTE. Final Payment to Jeremy Snyder”, dated 25 January 2018.

 19   Ibid.

 20   Ibid.

 21   Attachment to Applicant’s submissions, filed 28 April 2018, “Form F2 – Notice of claim of harsh, oppressive or unfair dismissal”, lodged with WAIRC on 10 February 2018.

 22   [2011] FWAFB 975.

 23 Ibid, [13]-[14].

 24   Attachment to Applicant’s submissions, filed 28 April 2018, “Form F5 – Notice of answer”, received 9 March 2018.

 25   Ibid.

 26   [2009] FWA 1431.

 27   Ibid, [9].

 28   Ibid.

 29   Ibid, [11].

 30   Ibid, [12].

 31   Legros v David Morris P/L as the Trustee for the Gustose Unit Trust t/as The Pantry Door[2010] FWA 4417, [31].

 32 Ibid, [33] – [34].

 33   [2010] FWA 4525.

 34   [2010] FWA 4525, [12] – [13].

 35   Palmer v RCR Engineering Pty Ltd [2009] FWA 1431.

 36   Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000).

 37   Ibid, [14].

 38   Ibid.

 39   See Palmer v RCR Engineering Pty Ltd [2009] FWA 1431, Legros v David Morris P/L as the Trustee for the Gustose Unit Trust t/as The Pantry Door[2010] FWA 4417 and Robertson v Zeugma Electrical & Communication Services Pty Ltd [2010] FWA 4525.