Luke Alexander Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore
[2023] FWCFB 69
•3 APRIL 2023
| [2023] FWCFB 69 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Luke Alexander Oakes
v
Fernance Enterprises Pty Ltd T/A Autobarn Lismore
(C2022/8159)
| VICE PRESIDENT CATANZARITI | SYDNEY, 3 APRIL 2023 |
Appeal against decision [2022] FWC 3138 of Commissioner P Ryan at Sydney on 25 November 2022 in matter number U2022/8453 – appeal granted – application remitted.
Background
Mr Luke Alexander Oakes has applied pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal and if granted, appeals a decision[1] (the Decision) and order[2] of Commissioner P Ryan dated 25 November 2022.
In the Decision, the Commissioner determined that Mr Oakes’ application for an unfair dismissal remedy had been lodged two days out of time having regard to the statutory time limit in s 394(2) of the Act. The Commission determined not to extend the time limit for lodging the application and dismissed Mr Oakes’ application.
Mr Oakes contends that his unfair dismissal application was not filed out of time and that the Decision was attended by appealable error.
On 10 February 2023, the appeal was subject to a hearing in respect of both permission to appeal and the merits of the appeal. The Respondent, Fernance Enterprises Pty Ltd trading as Autobarn Lismore was represented, with permission. Mr Oakes appeared on his own behalf.
For the reasons that follow, we are satisfied that it is in the public interest to grant permission to appeal. The appeal is upheld.
The Decision under appeal
The background to Mr Oakes’ application for an unfair dismissal remedy is set out in the Decision, as follows:[3]
“The Respondent trades as Autobarn Lismore, an auto parts and spare car parts store and retailer.
On 16 April 2018, the Applicant commenced employment with the Respondent as an automotive air-conditioning mechanic. The Applicant was employed on a full-time basis.
From 31 December 2021 until 9 May 2022, the Applicant was certified unfit for duty in relation to a work-related injury pursuant to a workers compensation matter.
In February 2022, the Respondent’s workshop and premises were damaged by flood.
On 22 April 2022, the Respondent wrote to the Applicant requesting that he remove his tools and any other personal belongings from the Respondent’s premises as it was to commence building works to repair flood damage.
On 9 May 2022, the Applicant was certified fit for pre-injury duties. However, the Respondent was not made aware of this and the Applicant did not return to work.
In early-mid July 2022, the Respondent made enquiries as to the status of the Applicant’s workers compensation matter and was advised that the file was closed on 9 May 2022 as the Applicant was certified fit for pre-injury duties.
Over the period of 11-14 July 2022, the Respondent attempted to contact the Applicant by email and telephone regarding his return to work.
On 25 July 2022, the Applicant sent a response to the Respondent in which he took issue with various matters, including unresolved allegations that he was subjected to workplace bullying. The Applicant concluded that correspondence stating:
“In light of these facts, the ability for me to return to my employment at Autobarn Lismore has been taken away by the management and therefore, with my own safety in mind, I have chosen not to return.”
(emphasis added).
On 26 and 28 July 2022, the Respondent sent correspondence by email to the Applicant confirming receipt of his correspondence and requesting that he reconsider his position.
The Applicant did not respond to either of these emails as they were automatically redirected to his ‘junk’ email folder and he only discovered them after 1 August 2022.
On 1 August 2022 and not having received a response to its emails of 26 and 28 July, the Respondent wrote to the Applicant accepting his correspondence of 25 July 2022 as a resignation effective immediately. The Respondent processed and made payment for the Applicant’s accrued annual leave.
On the morning of 9 August 2022, the Applicant sent correspondence to the Commission which attached a file.
At approximately 9.47am on 9 August 2022, the Commission sent correspondence to the Applicant informing him that the Commission could not open the file due to the format and/or security settings. Of note, the correspondence from the Commission stated:
· That the files cannot be accessed and the email cannot be actioned;
· If the Applicant has tried to lodge an application, the Commission has not received the files;
· There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits; and
· The Applicant can seek help by return email or by telephone and provided the relevant telephone number
On 17 August 2022, the Applicant filed the Application by email in PDF Format.”
(footnotes omitted)
The Commissioner observed that the parties were in dispute about when Mr Oakes’ employment ceased and whether it was terminated at the initiative of the employer. The Commissioner proceeded by setting out the parties’ submissions in respect of this matter.[4]
Mr Oakes’ position was that his 25 July 2022 email to the Respondent was not a resignation. Rather, Mr Oakes contended that his employment ceased on 1 August 2022 when the Respondent accepted his resignation “effective immediately” on that date. In the alternative, Mr Oakes submitted that his employment could not have ceased earlier than 28 July 2022 when the RRespondent invited him to reconsider his position. In either case, Mr Oakes submitted that his application for an unfair dismissal remedy was filed within the 21-day statutory timeframe.
The Respondent’s position was that Mr Oakes’ 25 July 2022 correspondence constituted an unqualified resignation.[5]
The Commissioner determined that he could not accept Mr Oakes’ contention that his 25 July 2022 email was merely an explanation for his non-attendance at the workplace since 9 May 2022. The Commissioner noted that the correspondence is “unambiguously clear in its terms that the Applicant has ‘chosen not to return’.”[6] The Commissioner concluded:[7]
The effect of the Applicant’s correspondence was that it gave notice to the Respondent that he was ending the employment immediately on 25 July 2022. The notice was not conditional upon the Respondent making changes to its management structure, nor was it given in the heat of the moment, noting the Applicant was responding to correspondence sent some 10 days earlier.
While the Respondent sent subsequent correspondence to the Applicant in an attempt to have him reconsider his decision to “[choose] not to return”, before confirming that it accepted his resignation on 1 August 2022, that does not alter the legal effect of the Applicant’s correspondence.
…
Accordingly, I find that date of dismissal relevant to the Application is 25 July 2022.
The consequence of my finding is that the Application was filed 23 days after the date the alleged dismissal took effect, and 2 days outside the 21 day period. Therefore, the Applicant will require an extension of time.”
In light of the conclusion that the application was lodged out of time, the Commissioner turned to consider the matters required by s 394(3) of the Act.[8]
With respect to the reason for the delay in s 394(3)(a), Mr Oakes submitted that he had lodged his application for an unfair dismissal remedy with the Commission on 9 August 2022. Accordingly, Mr Oakes’ position was that his application was made within the 21-day statutory timeframe, irrespective of whether his employment ceased on 25 July or 1 August 2022. Mr Oakes says that he did not know how to change the format of the file following receipt of the Commission’s correspondence on 9 August 2022 advising him that the Commission could not open the file “due to format and/or security settings.”
The Commissioner declined to accept this as an acceptable explanation for the delay, noting that Mr Oakes did not contact the Commission for assistance as invited, or take steps to file the application by telephone.[9] The Commissioner also rejected Mr Oakes’ contention that the delay in lodging his application was occasioned by his limited access to the internet while moving house, and the steps taken to acquire a friend’s business.[10]
Having concluded that Mr Oakes had not provided an acceptable or reasonable explanation for the delay,[11] the Commissioner considered the evidence as was relevant to the considerations in s 394(3)(b)-(f) of the Act. In relation to the merits of Mr Oakes’ substantive application, the Commissioner found as follows:[12]
“The FW Act requires me to take into account the merits of the application in considering whether to extend time. While I have found that the Applicant resigned from his employment, there is a dispute as to whether the Applicant was forced to do so because of conduct engaged in by the Respondent.
Accordingly, it is not possible to make any firm or detailed assessment of the merits, as the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. I consider the merits to be a neutral consideration.”
The Commissioner determined that he was not satisfied that exceptional circumstances existed. The Commissioner declined to grant an extension of time and dismissed the application.[13]
Principles on appeal
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[14] There is no right to appeal, and an appeal may be made only with the permission of the Commission.
Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[15] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[16] In GlaxoSmithKline Australia Pty Ltd v Makin[17] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[18]
The test of “exceptional circumstances” in relation to extensions of time to lodge applications under s 394, establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of discretion.[19] Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[20] - that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.
An appellate tribunal is not authorised to set aside a discretionary decision on the basis of a preference for an outcome different to that determined by the first instance decision-maker. In this respect, the High Court said in Norbis v Norbis:[21]
“The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”
We turn now to examine the grounds of appeal.
Appeal grounds and submissions
By his notice of appeal, Mr Oakes raises four grounds of appeal which are summarised as follows:[22]
1. An extension of time was not required as there was no delay in lodging the application. The application was submitted on 9 August 2022 in Word format and was resubmitted on 17 August 2022 in PDF format.
2. The Commissioner failed to take into account the Respondent’s 1 August 2022 correspondence which stated the employment terminated “effective immediately” and back-dated the termination date by seven days.
3. The application should not have proceeded to an extension of time hearing as the application was not lodged outside the 21-day statutory timeframe and the only question for determination was the date of termination.
4. The Commissioner made a significant error of fact in the calculation of time.
In his written submissions, Mr Oakes submits that an application for an unfair dismissal remedy cannot be made in the Commission “until termination has been advised.” Mr Oakes submits that in his case, the first advice of termination was 1 August 2022, and relies upon the 1 August 2022 correspondence to him from the Respondent in support of this position.[23] Mr Oakes further submits that he lodged his application on 9 August 2022 which is acknowledged by the Commission by way of the hearing book produced by the Commissioner’s chambers. Mr Oakes refers to the index of the hearing book which identifies Mr Oakes’ application being dated 8 August 2022.[24]
Mr Oakes submits that it is in the public interest for the Commission to grant permission to appeal. Amongst other matters, Mr Oakes contends that his application was not fairly managed, and it is in the public interest to be given “a fair go.”[25]
The Respondent contends that Mr Oakes’ dissatisfaction with the outcome is insufficient to trigger the public interest. It submits that Mr Oakes has failed to establish appealable error in the Decision, noting that the Commissioner properly considered and applied the factors in s 394(3) of the Act.
The Respondent says that appeal grounds one and three must fail, each arising from Mr Oakes’ contention that his application was not filed outside the 21-day statutory timeframe “despite experiencing technical and file formatting difficulties.”[26] Further, the Respondent submits that the Commissioner took into account the Respondent’s 1 August 2022 correspondence and read it in light of the finding that Mr Oakes had unambiguously resigned on 25 July 2022. Accordingly, it submits that appeal grounds two and three should be rejected.[27] In relation to appeal ground four, the Respondent submits that this ground is devoid of any particulars and cannot succeed.[28]
The Respondent further submits that the index to the hearing book simply reflects the date of Mr Oakes’ unfair dismissal application and is not determinative of the question of whether the application was filed with the Commission within the statutory timeframe. The Respondent contends that this matter, like each of the issues advanced by Mr Oakes, does not establish an arguable case of error or satisfy the public interest test.[29]
Consideration
It is only necessary to deal with appeal grounds one and three in the determination of the appeal before us. By these grounds, Mr Oakes contends that his application was first submitted on 9 August 2022 and therefore was not lodged outside the 21-day statutory timeframe.
Section 394 of the Act requires an application for an unfair dismissal remedy to be made within 21 days “after the dismissal took effect.” It is in the following terms:
394 Application for unfair dismissal remedy
(1)A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3:Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2)The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3)The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Having regard to the statutory framework, the task before the Commissioner was to determine whether Mr Oakes’ application was “made” within the 21 days after the dismissal took effect, as specified in s 394(2) of the Act. A Full Bench in Matthew Duncan Hatch v Woodside Energy Ltd (Hatch)[30] recently provided guidance on this matter in the context of a general protections application which could not, at first instance, be opened by the Commission due to issues seemingly arising from the format of the file. In Hatch, the Full Bench relevantly observed as follows:[31]
“Put another way, an application might suffer a range of (potentially fatal) defects and could still capable of being “made”, albeit it might be liable to dismissal if those defects are not cured or, in the case of the procedural rules, the requirement to meet them is not excused. There may be circumstances where the defects or deficiencies in a purported application are sufficiently significant that an application cannot even said to have been “made”. Save for the issue raised about the Appellant’s Form F2 initially being unable to be read, we do not consider this is such a case and say nothing further on that matter.
…
One issue of significance was the fact that the Appellant’s initial email at 11.59pm AWST attached a document that the FWC Registry was unable to read. On the material before us, we consider that was an issue of “lodgement” and did not affect whether the application had been “made”. It is also unclear to us exactly what the reason was for the Registry being unable to view the initial attachment. As noted above, the email sent on 5 May 2022 from the Registry stated that the attachment could not be opened because of the format of the files, or security restrictions imposed by the Applicant, or security restrictions of the Commission for some file sharing websites. We note that correspondence does not indicate what the actual reason was that the files contained with the Appellant’s first email could not be read. We also note the Appellant has stated (and we have no reason to doubt) that his initial email did contain a “Word” format document, which is consistent with the correspondence from Registry regarding its preferred file formats. In the event that it was not, compliance with rule 14 is waived.
Nonetheless, the Applicant resent the attachment in PDF format. There is no suggestion that what he resent in PDF form was any different in content to his initial document, such that it was a different application. We do not consider that these events allow a conclusion that the application was not “made” at 11.59 AWST.”
While Hatch was dealing with the reckoning of time where an application is lodged in a different time zone, the material facts before this Full Bench are analogous to those aspects of Hatch which relate to the filing of an application that the Commission’s registry was unable to read.
Mr Oakes’ evidence before the Commissioner discloses that following Mr Oakes’ receipt of the Respondent’s 1 August 2022 correspondence, Mr Oakes telephoned the Commission to enquire, “what my rights were.” Mr Oakes said that he was advised that the Commission could not assist him until he was dismissed from his employment “[a]nd that’s why I made the application the week after I was terminated on the 1/8.”[32]
Mr Oakes commenced drafting his application for an unfair dismissal remedy on or about 4 August 2022.[33] As Mr Oakes was moving house during this time, he initially used his mobile phone to draft his application but “couldn’t get it to work.” Mr Oakes completed his application by using a laptop.[34]
When asked during cross examination whether his application form was completed as a PDF file or as a Word document, Mr Oakes said, “I believe it was a Word document because I didn’t have the program I think to do the PDF on my computer. When you go through the application it has two options. It says you can use a PDF or I think it’s a Word…it has two different styles there. When I clicked on one of them it didn’t work. So I used the other one which is the one I first sent in on the – I think the 8th or the 9th.”[35] Mr Oakes lodged the application with the Commission by email on 9 August 2022.
Rule 14 of the Fair Work Commission Rules (Rules) relevantly provides:
“14 Lodging documents by email
(1) A document that is required or permitted to be lodged with the Commission under these Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgment of documents by email.
Note: The email addresses approved for lodgment of documents are available at (3) If a document is lodged by email:
(a) the document must be attached to the email:
(i) for a statutory declaration—as a PDF or other image format approved by the General Manager; and
(ii) for any other document—as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and
(iii) without any security restrictions; and
(b) the covering email must state:
(i) the name, address, telephone number and fax number (if any) of the natural person sending the email; and
(ii) an email address to which the Commission can send notices or other documentation; and
(iii) if the document is an application commencing a matter—that fact; and
(iv) if the document relates to an existing matter—the matter number given to the matter by the Commission.
Note: For subparagraph (a)(i), the statutory declaration must be signed and witnessed.”
As earlier noted, at approximately 9:47am on 9 August 2022, the Commission sent correspondence to Mr Oakes informing him that it could not open the file he had lodged that day. Mr Oakes received the Commission’s 9 August 2022 correspondence on 10 August 2022 and understood there to be an issue with the “file format” of his application. Mr Oakes asked a friend to assist him to “change the format to PDF.”[36] Mr Oakes “tried converting the file multiple times by saving as” but was unable to do it himself. Mr Oakes’ friend demonstrated the process for converting the file to PDF by utilising the print options.[37]
During cross-examination at first instance, the following exchange occurred between Mr Oakes and the Respondent’s representative:[38]
Ms SinhaMr Oakes, why would you need to convert the file if it downloaded as a Word document?
Mr Oakes Because it needed to be PDF is that correct?
Ms Sinha No. The Commission do accept Word documents as an application?
Mr OakesOkay. Well, I – if – so going on the website when you do the application it has two file types that you can select. I selected one of those, filled it in and that was the one I sent through on the night and it didn't work. And that's why I got confused because I sent in the Commission's own document. And then I figured it must have had to be a different file type and then when it said on the list it said it could be a PDF that's when I converted it to a PDF. I'm not sure whether or not it was a Word document to start with. It was just whatever it was I downloaded off the website for the Fair Work.
Consistent with Mr Oakes’ contentions set out above, the material before the Commission demonstrates that Mr Oakes sent his unfair dismissal application by email to the Commission’s Melbourne registry on 9 August 2022. On 9 August 2022, the Commission wrote to Mr Oakes advising him that it could not access his email or attachments because of the format of the files, security restrictions on the files or the Commission’s security restrictions. The email invited Mr Oakes to send the documents again in either PDF, Word, RTF, JPEG or TIF format. On 17 August 2022, Mr Oakes sent an email in response to the Melbourne registry email address, in which he stated:
“Thank you for your response.
I have attached the same file as a PDF, please let me know if this is ok?Thanks for your help.”
Attached to Mr Oakes’ 17 August 2022 email was Mr Oakes’ unfair dismissal application in PDF format, dated 8 August 2022. In his email to the Commission, Mr Oakes specified that, “I have attached the same file as a PDF…”
Noting it is not contended otherwise, we are satisfied that the document that Mr Oakes sent to the Commission on 9 August 2022 was the same as the PDF document filed with the Commission on 17 August 2022, being the application for an unfair dismissal remedy dated 8 August 2022. Mr Oakes’ unchallenged evidence was that he downloaded what he understood to be a Word version of the Form F2 application from the Commission’s website and lodged the completed application in that format on 9 August 2022. As observed by the Respondent and identified in the Commission’s 9 August 2022 correspondence to Mr Oakes, Word is one of the Commission’s recommended file formats. However, noting that the Commission’s 9 August 2022 correspondence to Mr Oakes does not, with specificity, identify the particular format of Mr Oakes’ application, in the event that the application was lodged on 9 August 2022 in a format other than that required by rule 14 of the Rules, we exercise our discretion to waive compliance with the Rules and accept the application lodged by Mr Oakes on 9 August 2022.
In these circumstances, the fact that the file sent on 9 August 2022 by Mr Oakes could not be opened by the Commission’s registry at that time does not result in a conclusion that the application had not been “made” for the purposes of s 394(2) of the Act on 9 August 2022.[39]
Conclusion
Irrespective of whether the alleged dismissal took effect on 25 July 2022 as contended by the Respondent, or 1 August 2022 as contended by Mr Oakes, the application for an unfair dismissal remedy was made within the statutory timeframe of 21 days when it was filed on 9 August 2022.
The Commissioner’s conclusion that the application was filed two days out of time was erroneous. Appeal grounds one and three of the notice of appeal are made out and it is therefore unnecessary to consider the other grounds of appeal. The appeal must be upheld, and the Decision quashed.
Orders and disposition
We order as follows:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The Decision in [2022] FWC 3138 and order PR748326 is quashed.
4. The application for an unfair dismissal remedy in matter number U2022/8453 is remitted to Commissioner P Ryan.
VICE PRESIDENT
Appearances:
Mr L Oakes, the Appellant.
Ms D Sinha, for the Respondent.
Hearing details:
2023.
Melbourne and Sydney, by video link.
10 February.
[1] [2022] FWC 3138.
[2] PR748326; Appeal book at 2.
[3] Decision at [11]-[25].
[4] Ibid at [27]-[32].
[5] Ibid at [32].
[6] Ibid at [33].
[7] Ibid at [34]-[35], [37]-[38].
[8] Ibid at [41].
[9] Ibid at [46]-[48] and [50].
[10] Ibid at [47], [49] and [51].
[11] Ibid at [52].
[12] Ibid at [56]-[57].
[13] Ibid at [59]-[61]; PR748326.
[14] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[15] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal& Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
[16] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
[17] [2010] FWAFB 5343.
[18] Ibid at [27].
[19] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[20] [1936] 55 CLR 499; 55 CLR 499.
[21] [1986] HCA 17; (1986) 161 CLR 513 at 518-9 per Mason and Deane JJ.
[22] Notice of appeal dated 11 December 2022 at 2.1.
[23] Appeal book at 4.
[24] Appeal book at 5.
[25] Notice of appeal at 3.1.
[26] Respondent’s submissions dated 27 January 2023 at [32].
[27] Ibid at [37].
[28] Ibid at [38].
[29] Respondent’s submissions dated 9 February 2023.
[30] [2023] FWCFB 51.
[31] Matthew Duncan Hatch v Woodside Energy Ltd. [2023] FWCFB 51at [48], [50]-[51].
[32] Transcript of proceedings dated 14 November 2022 at [151].
[33] Ibid at [153].
[34] Ibid at [155].
[35] Ibid at [156].
[36] Ibid at [163].
[37] Ibid at [169].
[38] Ibid at [170]-[171].
[39] Matthew Duncan Hatch v Woodside Energy Ltd [2023] FWCFB 51 at [51].
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