Joseph De Souza v Metro Trains Melbourne Pty Ltd

[2019] FWC 3625

[2019] FWC 3625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joseph De Souza
v
Metro Trains Melbourne Pty Ltd
(C2019/1618)

DEPUTY PRESIDENT YOUNG MELBOURNE, 27 MAY 2019

Application to deal with contraventions involving dismissal – extension of time – circumstances exceptional – extension of time granted.

[1] This decision concerns an application by Mr Joseph De Souza under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] The date that Mr De Souza’s employment ended was 1 February 2019. His application was not lodged until 13 March 2019. The period of 21 days ended at midnight on 22 February 2019 and the application was therefore lodged 19 days out of time. Mr De Souza seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 1 May 2019 I conducted the proceeding by way of determinative conference. Mr De Souza appeared on his own behalf and gave evidence. Ms Julia O’Reilly and Mr Colin Shaw appeared and gave evidence for the company.

Background

[4] Mr De Souza commenced employment with the company on 5 February 1995 and was employed in the role of authorised officer. Mr De Souza is a 70 year old man with osteoarthritis in both knees. Commencing in 2017 the company undertook a range of functional and other medical assessments of Mr De Souza’s physical ability to perform his role. On 7 March 2018 Mr Dale Talbert, Accredited Exercise Physiologist, undertook an on-site functional assessment of Mr De Souza. 1 Mr Talbert concluded that Mr De Souza’s physical limitations limited his ability to safely perform his role.2 On 9 March 2018, Dr Stuart Turnbull undertook a triggered health assessment of Mr De Souza at the request of the company. Dr Turnbull concluded that Mr De Souza “does not meet all medical criteria and cannot perform current duties and cannot perform these duties in the foreseeable future (greater than 12 months)” and determined that Mr De Souza was permanently unfit for duty.3 Consultation notes for Mr De Souza recorded by Dr Turnbull on 14 March 2018, state “Clearly not fit to do AO role and given age, permanently unfit.”4

[5] On 15 March 2018 the company met with Mr De Souza and informed him that as he was declared permanently unfit they could not provide him with any duties. Mr De Souza commenced sick leave on 19 March 2018 and was absent from work on paid sick leave until his employment ended on 1 February 2019.

[6] On 3 April 2018, 14 May 2018, 24 September 2018 and 11 October 2018 the company wrote to Mr De Souza regarding his fitness for work and sought information regarding his upcoming knee surgery and any further medical information. 5 In all of these letters the company states that Mr De Souza has been deemed “permanently medically unfit to perform the inherent requirements of your position”. In the letters of 3 April and 24 September 2018, the company states that it was considering terminating Mr De Souza’s employment. In the letter of 11 October 2018 the company again advised Mr De Souza that it was considering terminating his employment and requested that Mr De Souza provide any final medical information for its consideration by 25 October 2018.

[7] On 25 October 2018, Dr Paul Kruger, Surgical Resident, St Vincent’s Hospital wrote to the company and confirmed that Mr De Souza was awaiting a right total knee replacement and that his surgery was likely to occur in January 2019. Dr Kruger also said “I am unsure that deeming him “permanently medically unfit”, as noted in your letter is completely accurate, as some people do return to work after joint replacements….Adjusting for post operative recovery and rehabilitation, it is possible that he might be returning to work in some capacity by February or March. These are of course rough estimates only, and perhaps if he excels in his recovery and recovers well he may wish to return to work even sooner than that.” 6

[8] On 13 November 2018 Mr De Souza attended a meeting with the company (November Meeting). At the November Meeting the company informed Mr De Souza it intended to terminate his employment, effective 1 January 2019. It is agreed between the parties that at the time of the November Meeting Mr De Souza had approximately 8 and one half months’ accrued sick leave remaining. 7 At the conclusion of the November Meeting, Mr De Souza provided a handwritten note of the same date, resigning from his employment that day.8 The November Meeting was the last direct engagement Mr De Souza had with the company.

[9] The parties subsequently entered into a Deed of Release dated 19 November 2018 (Deed). 9 The Deed provides:

•  that Mr De Souza has resigned, with an effective cessation date of employment of 1 February 2019;

•  Mr De Souza will be on paid sick leave from 19 November 2018 until the cessation date of 1 February 2019;

•  a release by Mr De Souza in favour of the company; and

•  that the terms of the Deed are confidential.

Consideration

[10] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 10

[11] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 11 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.12

[12] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Reason for the delay

[13] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 13 or a reasonable explanation.14 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an 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 the applicant’s favour, however, all the circumstances must be considered.15 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.16

[14] Mr De Souza’s evidence was that on 23 January 2019 he was admitted to St Vincent’s Hospital for a right sided total knee replacement. He was discharged from hospital on 4 February 2019 but was in disabling right knee pain, had limited mobility and was incapacitated. Due to post-operative complications, being wound infection and separation, he was readmitted to St Vincent’s Hospital from 25 February until 2 March 2019. Mr De Souza provided evidence from his treating doctor, Dr Altai Kali to support these hospital admissions and the reasons for them. 17 Following discharge on 2 March 2019, Mr De Souza stated that he unable to walk, was using crutches and was still in deep pain. He gave evidence that he was taking pain relief until mid-March 2019. Mr De Souza gave evidence that he was on crutches with limited mobility until 10 March and that 13 March 2019 was the earliest date he felt he could walk on the street without a risk of falling. Mr De Souza gave evidence that he lodged his application in person at the Commission on 13 March 2019. Commission records demonstrate that Mr De Souza’s application was lodged in hard copy form, rather than electronic form, but do not disclose the method of lodgment. In response to questions from the company, Mr De Souza gave evidence that at that time he lodged his application he did not have a mobile phone or land line, although now does have an analogue mobile telephone, and he does not have internet access.

[15] The company submits that Mr De Souza has not provided an adequate reason for the delay. The company submits that Mr De Souza could have posted the application or asked another person to assist him to lodge the application, including the Rail Tram and Bus Union (RTBU) who represented Mr De Souza at the November Meeting, or his wife; he did not need to attend the Commission in person to lodge his application. Further, the company submitted that Mr De Souza knew from 19 November 2019 that his employment was to terminate on 1 February 2019 and accordingly, he had approximately 100 days in which to prepare his application.

[16] Mr De Souza is a 70 year old man. He lives with his wife. He underwent major orthopaedic surgery and had post surgical complications, resulting in a further hospital admission. I accept his evidence that he was in disabling pain post surgery, had limited mobility, was using crutches until at least 10 March 2019 and was incapacitated. I also accept his evidence that he did not have a telephone and did not have internet access. Whilst I accept that Mr De Souza need not have lodged his application in person and could have posted it, given his evidence, which was not challenged, that 13 March 2019 was the first time he felt he could walk on the street safely without fear of falling, it is difficult to see how posting the application would have resulted in a lesser delay. I accept that, in principle, Mr De Souza could have asked another person to assist him to lodge his application. Mr De Souza’s evidence on this point was that given he did not have a telephone or internet access, his wife was the only person who could have potentially assisted him and that she was unable to do so due to her work commitments and attending to his post surgical care. I accept that evidence. As to the company’s submission that Mr De Souza had in excess of 100 days to prepare his application, Mr De Souza’s employment did not end until 1 February 2019 and accordingly, he had no entitlement to make an application under section 365 of the Act prior to that date. Further, it is the period from the expiry of the 21 days after termination until the date of lodgment that is relevant for present purposes, noting that the circumstances from the date of dismissal must also be considered in assessing the explanation for the delay. In my opinion, Mr De Souza has established an acceptable or reasonable explanation for the delay in lodging the application. This weighs in favour of granting an extension of time.

Action taken by the person to dispute the dismissal

[17] Mr De Souza says that at the November Meeting he disputed the ability of the company to terminate his employment in circumstances where he still had in excess of eight months’ sick leave available to him and Dr Kruger had indicated surgery was likely to occur in January 2019 and that he may be able to return to work in February or March 2019. The company accepted that at the November Meeting Mr De Souza did dispute its ability to terminate his employment and said that Mr De Souza was “upset that he could not use his sick leave or be paid it out.” I accept that Mr De Souza did dispute the dismissal at the November Meeting. However, it is uncontested that Mr De Souza entered into the Deed approximately a week later, did not dispute his dismissal between the date of entering into the Deed and the date of effective termination on 1 February 2019, or at any time thereafter. Further, Mr De Souza provided to the company a hand written note of resignation on 13 November 2018 which, on one view, may be considered to be the antithesis of disputation. In these circumstances, I consider the action taken by Mr De Souza to dispute his dismissal at the November Meeting to be balanced by his subsequent lack of disputation. Accordingly, I consider this to be a neutral consideration in the present case.

Prejudice to the employer

[18] The company and Mr De Souza entered into the Deed. As set out above, under the terms of the Deed Mr De Souza was paid until 1 February 2019, resigned from his employment with the company, released the company from any employment related claims and agreed to obligations of confidentiality. Accordingly, prima facie, the Deed resolves any claim Mr De Souza has or may have in relation to his employment and its cessation. Mr De Souza submits that he was forced to enter into the Deed and resigned to avoid “a stain on my name”, as the company told him that it intended to terminate his employment. Mr De Souza was represented at the November Meeting by the RTBU and signed the Deed at the RTBU offices approximately one week later. In these circumstances, I consider that the company could have reasonably understood that any dispute with Mr De Souza regarding his employment and its cessation had been resolved on a final and confidential basis. In my opinion, in these circumstances, the granting of an extension of time will accrue prejudice to the company. This weighs against granting an extension of time.

Merits of the application

[19] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[20] Mr De Souza was unrepresented before the Commission and had some difficulty in articulating his claim with reference to specific provisions of Part 3-1 of the Act. Based on the material in the application, the Outline of Argument and his oral submissions during the proceeding, I understand Mr De Souza to allege, in substance, that:

•  the company terminated his employment, or decided to do so, to prevent him from using the remainder of his accrued sick leave;

•  the company coerced him into resigning;

•  the company terminated his employment, or decided to do so, to coerce him not to use the remainder of his accrued sick leave entitlement;

•  the decision to terminate his employment was taken, in part, because of his age; and

•  he was dismissed because he was temporarily absent from work due to illness or injury.

[21] Accordingly, it seems to me that the following provisions of Part 3-1 of the Act are presently relevant:

•  section 340;

•  section 343;

•  section 351; and

•  section 352.

[22] Section 340 of the Act provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right, or to prevent the exercise of a workplace right by the other person. ‘Adverse action’ is defined in section 342 and includes a dismissal. Section 341 provides that a person has a workplace right if, amongst other things, the person is entitled to the benefit of, relevantly, a workplace law, or a workplace instrument.

[23] Section 343 of the Act provides, amongst other things, that a person must not take any action against another person with the intent to coerce that other person not to exercise a workplace right.

[24] Section 351 of the Act provides, amongst other things, that an employer must not take adverse action against a person who is an employee because of a certain attribute of the person, including the person’s age.

[25] Section 352 of the Act provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury as prescribed by the regulations.

Section 340

[26] It appears uncontested that at the time of the termination of his employment, Mr De Souza still had considerable accrued sick leave available to him. He therefore had a workplace right as defined in section 341. The company submitted however that there was no dismissal; rather Mr De Souza resigned. Mr De Souza submits that he was “forced” to resign as the company told him he either resigned or they would terminate his employment. In these circumstances Mr De Souza says he provided his resignation. He submits, inter alia, that there is no other explanation for a resignation by him in circumstances where he had such a significant amount of sick leave still available to him. The company accepts that at the November Meeting it intended to terminate Mr De Souza’s employment and as a consequence of that meeting Mr De Souza’s employment would have ended. However, it disputes that Mr De Souza was forced to resign and relies upon both Mr De Souza’s hand written note of resignation dated 13 November 2018 and the terms of the Deed. Further, the company says that the RTBU, on behalf of Mr De Souza, requested that Mr De Souza be allowed to resign, rather than have his employment terminated, and the company agreed to this course. It says that there were benefits in Mr De Souza resigning, being the company agreeing to a termination date of 1 February 2019 in lieu of the intended date of 1 January 2019 and, as a consequence, Mr De Souza receiving an increased payment due to the pay rise which came into effect in January 2019. Mr De Souza disputes the role of the RTBU, as asserted by the company, in negotiating his resignation. Finally, the company submits that the termination of Mr De Souza’s employment was not because he had an entitlement to sick leave or because he proposed to exercise that right. Rather, it was because on 14 March 2018 he was declared by Dr Turnbull to be permanently unfit to perform his role.

[27] There is clearly a factual dispute between the parties as to how Mr De Souza’s resignation came about. The question of whether Mr De Souza voluntarily resigned or was “forced” to do so, such that his termination of employment may be considered to constitute a dismissal, will be a question of evidence, to be tested under cross examination. It is therefore not a matter that, in the present circumstances, can be determined. However, I note that the company concedes that at the November Meeting it told Mr De Souza it intended to terminate his employment and that his employment would end as a result of the November Meeting. It also concedes that at that time Mr De Souza had approximately eight and one half months’ sick leave still available to him and that he disputed the company’s ability to terminate his employment in those circumstances. It also concedes that at the time of the November Meeting the company was in receipt of Dr Kruger letter of 25 October 2018. The company therefore knew that Mr De Souza’s surgery would likely occur in January 2019 (noting, though, that no precise date was provided by Dr Kruger) and further, that Dr Kruger had expressed the opinion that it was possible that Mr De Souza might return to work in some capacity in February or March 2019. It is difficult to understand why, in those circumstances, Mr De Souza would voluntarily resign in November and deny himself the opportunity to use his significant accrued sick leave to recover from surgery and, potentially, demonstrate his capacity to perform the inherent requirements of his role, even given the benefits which the company asserts arose as a consequence of Mr De Souza resigning. In light the above matters, I consider that Mr De Souza’s position in relation to section 340 is not without merit and to be arguable. However, the company too has an arguable position, most particularly in light of the fact that it says Mr De Souza was represented by the RTBU at the November Meeting and the undisputed fact that Mr De Souza subsequently entered into the Deed.

Section 343-resignation

[28] Mr De Souza submits that he was coerced by the company into resigning. I understand this to be a submission to the effect that the company’s action in terminating, or deciding to terminate, Mr De Souza’s employment was taken with intent to coerce him to resign, in breach of section 343 of the Act. A person coerces another to act in a particular way if the first person brings about that act by force or compulsion. Coercion will cause a person to act in a way that is non-voluntary. 18 Coercion has been held to require the satisfaction of two elements: negation of choice and the use of unlawful or illegitimate or unconscionable means.19 Neither party made any substantive submissions directed to the elements necessary to establish an intent to coerce for the purposes of section 343. However, their respective positions regarding Mr De Souza’s resignation were the subject of submissions and have already been set out. There is therefore insufficient material before me to make any assessment of whether intent to coerce could be established. However, even assuming that Mr De Souza could establish that the company’s decision to terminate his employment was made with the requisite intent, it is difficult to see how resignation could be a workplace right for the purposes of section 343. Accordingly, I do not consider that Mr De Souza has an arguable positon in relation to this allegation.

Section 343-sick leave

[29] Mr De Souza submits that the company terminated his employment or decided to terminate his employment in order to coerce him into not exercising his right to use his accrued sick leave. I understand this to be a submission to the effect that the company’s action in terminating, or deciding to terminate, Mr De Souza’s employment was taken with intent to coerce him not to use his accrued sick leave, in breach of section 343 of the Act. As already set out, there is insufficient material before me to make any assessment of whether intent to coerce could be established. It is the case though, that Mr De Souza had a workplace right, being his entitlement to accrued sick leave and that upon termination of his employment Mr De Souza was not able to exercise that right. The company do not contest that by terminating Mr De Souza’s employment he lost his ability to use his accrued sick leave. The company says that the loss of sick leave was a consequence of Mr De Souza being unable to perform the inherent requirements of his role. I note that at the time of the November Meeting the company knew that Mr De Souza still had an entitlement to approximately eight months sick leave, that his knee surgery would likely occur in January 2019 (noting, though, that no precise date was provided by Dr Kruger) and further, that Dr Kruger had expressed the opinion that it was possible that Mr De Souza might return to work in some capacity in February or March 2019. I also note that Dr Kruger expressed the view that in these circumstances he was:

“unsure that deeming him [Mr De Souza] “permanently medically unfit”, as noted in your letter, is completely accurate, as some people do return to work after joint replacements.”

[30] In all the circumstances, I consider that Mr De Souza has an arguable positon that the action of the company was taken with intent to coerce him not to use the reminder of his accrued sick leave, in breach of section 343.

Section 351-adverse action because of age

[31] Mr De Souza submits that the company terminated his employment or decided to terminate his employment, at least in part, because of his age, in breach of section 351 of the Act. Mr De Souza says the decision to terminate his employment was made following Dr Turnbull’s assessment that he was permanently unfit to perform his role and relies upon the consultation notes recorded by Dr Turnbull on 14 March 2018, which state:

“Clearly not fit to do AO role and given age, permanently unfit.”

[32] In response, the company says that the decision to terminate Mr De Souza’s employment was because Mr De Souza was unable to perform the inherent requirements of his role and not because of his age. As set out above, whether Mr De Souza was dismissed, such that adverse action as defined in section 341(1)(a) could be established is in dispute. However, that the company had made a decision to terminate Mr De Souza’s employment is not. I consider that the decision to terminate Mr De Souza’s employment is capable of constituting adverse action as defined in section 341(1)(b) and/or (c) of the Act. Further, on the basis of the consultation notes of 14 March 2018, Dr Turnbull’s conclusion that Mr De Souza was permanently unfit, upon which the company relies, appears to be based, at least in part, on Mr De Souza’s age. Section 360 of the Act provides, in summary, that a prohibited reason need only be one the reasons for the alleged adverse action. The company’s position in relation to this allegation appears to me to be difficult, however, given the interlocutory nature of these proceedings these matters have not been fully tested. However, I consider Mr De Souza has an arguable position that the company’s decision to terminate his employment was because of reasons which included his age, in breach of section 351.

Section 352 – dismissal because of temporary absence

[33] Mr De Souza submits that his employment was terminated because he was temporarily absent from work because of illness or injury, in breach of section 352 of the Act. The parties’ respective positions as to whether Mr De Souza was dismissed have already been set out. It is, however, agreed that Mr De Souza was on paid sick leave for the duration of his absence from work. The company submitted that Mr De Souza was not temporarily absent because he was permanently unfit for work and further that the reason for the dismissal, should one be found, was because of his permanent unfitness for work, not because of his absence.

[34] Section 352 requires there be a temporary absence due to illness or injury of a kind prescribed by the regulations. The relevant regulation is regulation 3.01 of the Fair Work Regulations 2009 and includes requirements regarding the production of medical certification or a statutory declaration, notification and the period of the absence. Regulation 3.01 is an exhaustive statement of the illness or injuries which will support a claim under section 352. 20 Neither party were able to address me as to the matters in regulation 3.01and no evidence of medical certification was provided by Mr De Souza nor was any industrial instrument referred to or put into evidence. However, it is clear that Mr De Souza was absent for a period of more than three months and was on paid sick leave for the duration of that absence. Accordingly, subject to what evidence might be led as to certification and/or notification if this matter were to proceed, I consider that Mr De Souza has an arguable position that his absence was a temporary absence as contemplated by section 352. It is clearly no answer to this, as submitted by the company, that Mr De Souza’s absence was not temporary for the purposes of section 352 because he was deemed permanently unfit. However, the company also submitted that the reason for Mr De Souza’s termination of employment was not because of his absence but because of his inability to perform the inherent requirements of his position. Accordingly, I consider that the company has an equally arguable position.

Deed

[35] In light of the above, on the basis of the limited material before me, I consider the merits weigh slightly in favour of Mr De Souza. However, as a consequence of entering into the Deed, Mr De Souza has prima facie released the company from any claims arising out of, or in connection with, his employment and is therefore, prima facie, precluded from bringing any proceedings against the company. 21 This is a factor which weighs in favour of the company on the question of merits.

[36] Accordingly, although I consider in isolation that the merits weigh slightly in favour of Mr De Souza, taking into account the terms of the Deed, I consider, overall the merits to be a neutral consideration.

Fairness as between the person and another person in a like position

[37] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any persons that would be relevant in relation to the question of fairness as between Mr De Souza and other persons in a similar position. The company referred me to the decision of Gooley DP in Sassano v Metro Trains Melbourne [2016] FWC 3969. I do not find any assistance from that decision in the present circumstances and I therefore consider this to be a neutral consideration.

Conclusion

[38] Having regard to all of the matters that I am required to take into account under section 366(2), I am satisfied that the requisite exceptional circumstances exist. Mr De Souza has provided an acceptable or reasonable explanation for the delay in filing the application. Further, in my view, when considered together, the circumstances of this case are exceptional.

[39] I therefore propose to allow Mr De Souza a further period of time within which to lodge the Application. The Application may be lodged by 13 March 2019.

[40] The application will be progressed by way of conference at a time and date to be advised.

DEPUTY PRESIDENT

Appearances:

J De Souza on his own behalf

J O’Reilly and C Shaw for the Respondent.

Hearing details:

2019.

Melbourne:

1 May 2019.

Final written submissions:

For the Applicant: 4 April 2019

For the Respondent: 24 April 2019

Printed by authority of the Commonwealth Government Printer

<PR708692>

 1   Exhibit A10

 2   Exhibit A10

 3   Exhibit A8

 4   Attachment to Exhibit A8

 5   Exhibit R2

 6   Exhibit A5

 7   Exhibit A7

 8   Exhibit R3

 9   Exhibit A3

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

 11   [2011] FWAFB 975

 12   At [13]

 13   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 14   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 15   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]

 16   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 17   Exhibit A2

 18   Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139 at[44]; cited in Liquor Hospitality & Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [63]

 19   Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72 at [174]

 20   Hodkinson v The Commonwealth [2011] FMCA 171 at [157]; Rogers v Millenium Inorganic Chemicals Limited (2009) 178 IR 297 at [52]; Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784

 21   Exhibit A3 at para 2.4