Maria Monteleone v Alinta Servco Pty Ltd
[2024] FWC 543
•29 FEBRUARY 2024
| [2024] FWC 543 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Maria Monteleone
v
ALINTA SERVCO PTY LTD
(C2023/7304)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 29 FEBRUARY 2024 |
Application to deal with contraventions involving dismissal – application filed two days out of time – request for an extension of time – no exceptional circumstances – application dismissed.
Introduction
On 22 November 2023, Ms Maria Monteleone (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by ALINTA SERVCO Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application made under s.365 must be filed within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute between the parties that the employment of the Applicant by the Respondent came to an end by way of dismissal on 30 October 2023. It is equally not in dispute that the Applicant became aware of her dismissal on that date. I make these findings.
Given that the Applicant has filed her Application on 22 November 2023 (at 7:11pm AEDT), the Application has been filed two days outside of (or beyond) the 21 day time limit under s.366(1)(a) of the Act. The Applicant should have filed her Application on or before 20 November 2023 for it to have been filed within the requisite 21 day time period.
Directions were issued on 18 January 2024 to program this matter for hearing.
At the hearing on 27 February 2024, the Applicant appeared for herself, and Mr Ben Dudley, Partner, Seyfarth Shaw Australia lawyers, appeared with permission for the Respondent.[2]
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to grant an extension of time.
The test of “exceptional circumstances” is a “high hurdle” for an applicant to meet, and involves the exercise of a broad discretion by the Commission.[3]
The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[4] (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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 [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[5]
The matters under s.366(2)(a)-(e) of the Act need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[6] (Stogiannidis):
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[7]
At this point, a note of caution is appropriate. In Elias v Commissioner of Taxation[8], Hely J points out that the comments of Wilcox J in Nestle Australia Ltd v Federal Commissioner of Taxation[9] (as cited in Stogiannidis, at [19]), are being made in circumstances where a decision-maker dismisses a relevant consideration as irrelevant. They are not being made absent a recognition “that the weight to be given to the consideration, either in an absolute or relative sense, is a matter for the [relevant] decision-maker”.[10]
Indeed, whilst phrases such as ‘have regard to’ or ‘take into account’ require a decision-maker to properly take a matter into account, it is wholly up to the decision-maker as to what weight (if any) is given to a matter in terms of its influence upon an ultimate result.
As Kitto J stated in the case of Rathborne v Abel[11] (Rathborne):
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] VicRp 99 (16 May 1961); [1961] VR 632, per Adam J at 634.”[12]
(emphasis added)
The requirement to ‘have regard to’, or ‘to take into account’ a particular matter, as distinct from a necessity to give a matter weight, is perhaps best encapsulated by Lowe and O'Bryan, JJ, in De Iacovo v Lacanale (No 3); Psaila (No 3); De Maroc (No 3)[13] (De Iacovo), where they state:
"We agree with the approach which is made to this problem by the Full Court of New South Wales in Davey v Murfin (1956) 73 WN (NSW) 222, in discussing similar words in a New South Wales statute. There, Roper, CJ in Eq., said (at p. 223): 'It has been submitted that in view of the requirements of that section it was necessary for the magistrate to consider each of the headings which are dealt with under [the relevant section of the legislation] and to make a finding on each of them except those which were not relevant having regard to the particular problems which were being dealt with here and then to have regard to that specific finding in some way or other, that is, to give the finding at least some weight. I do not think the magistrate is called upon to do that'. His Honour then went on to point out that the magistrate gave little or no weight to various factors, for example to what appears in our paragraphs (a), (d), and (f) of [the relevant section of the legislation]. He then added: 'What regard he had to them was a matter for him and it is not shown that there was any error in law in the manner in which he approached the problem from that point of view'."
The foregoing passages of Rathborne and De Iacovo are also wholly consistent with the decision of the Full Bench (Watson VP, Sams DP, and Harrison C) in CEPU v Active Tree Services[14]:
“When a discretion is exercised different decision-makers may attach different weight to different factors and ultimately may reach different conclusions. It is not our task on appeal to determine if we would have made similar findings, attached similar weight to the factors or reached the same conclusion. In this regard the Commissioner properly had regard to relevant factors and the conclusion he reached was open to him.”[15]
Reason for delay[16]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[17] (Bianca Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[18] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[19] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[20]
The Applicant’s reasons for delay in the filing of her Application two days late, are set out in her email to Chambers dated 30 January 2024, which reads:
“I am writing with reference to my late application,
I had filed my application with in time
I received a phone call from a female who works for Fair work saying she was looking into my case the lady I spoke to was not helpful and not sympathetic to my situation and for what I was and still am going through I felt I was not given the correct information and she was dismissive she didn't say nothing to say I had filed the wrong application
A week after I had received a phone call after I called to say I would like to know if my application has been received the person had not said I filed the wrong application either
It wasn't until I had called a third party to let me know I had placed the wrong application so I filed the other form and it arrived a day late
After calling and speaking to fair work they had explained that it will be looked into and a decision would be made as to what process would be next
I hope you can review and reassess my case
Kind regards
Maria”
At the hearing, the Applicant essentially repeated orally what she says in the foregoing email (albeit she made various submissions that go to the purported merits of her Application and the unfairness of her dismissal, including the manner in which she was allegedly treated prior to her dismissal).
The Respondent points out that the Applicant has provided no reason as to why she first (wrongly) filed her unfair dismissal claim, nor has she explained the timeline between her filing the unfair dismissal claim, and the filing of her Application.[21]
I note that the Applicant has not yet discontinued her unfair dismissal claim.
Importantly, the Applicant has not asserted in these proceedings that when she filed her unfair dismissal claim she “thought” (wrongly or otherwise) she was filing a general protections involving dismissal application.
Ignorance of, or unfamiliarity with, the Commission or its unfair dismissal or general protections jurisdiction, like ignorance of the 21 day statutory time limit, is not an exceptional circumstance.[22] The Commission’s website (running 24/7) has a wealth of information going to the preparation and filing of applications. The fact that this information is easily accessible and publicly available to all persons, ought not be ignored, minimalised or diminished without very (very) good reason. In this case, I do not accept that issues associated with ignorance or unfamiliarity justify or explain the Applicant’s delay (on the evidence) in the filing of her Application.
The Commission’s Telephone Helpline (howsoever labelled or described) and web based information services (howsoever labelled or described) do not provide legal advice (or advice that a party can otherwise rely upon). This is clearly stated on the Commission’s website, which reads (to the effect): “As an Independent Tribunal, [the Commission] cannot give you legal advice”. This is also made clear when one contacts by telephone, the Commission or the Commission’s Telephone Helpline, where, before a call is answered by a staff member, an automated message ordinarily states (words to the effect): “Staff cannot give you advice or an opinion. They can only provide general information as found on the FWC’s website. If you are after legal advice, ask about your eligibility for the free legal advice service”. There is no cogent evidence before me as to the full content of any discussions or other communications that occurred between the Applicant and the Commission’s staff. I do not consider that I am in a position to speculate, let alone make a finding of fact, as to what transpired. In any event, whatever communication that did occur between the Applicant and the Commission’s staff, it could never be said to constitute advice (i.e. Commission staff cannot give advice or opinions, let alone provide legal advice or opinions).
Having regard to the evidence and submissions of the parties, I do not accept that the Applicant has provided credible or “probative” evidence confirming that she was ‘prevented’ (or unable) to file her Application within 21 days of her dismissal. The reasons for delay relied upon by the Applicant simply do not, or do not sufficiently and specifically, explain her two day delay in the filing of her Application (even if it might be said that some (or parts) of that two days is explained). I conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute the dismissal[23]
There is no evidence before me to the effect that the Applicant made the Respondent aware that she disputed her dismissal prior to the filing of her Application on 22 November 2023. Further, even if the Applicant did make the Respondent aware that she disputed her dismissal prior to filing her Application, the two day delay (in the filing of her Application) makes any such notification of dispute (in my view) of little moment. I equally note and have regard to the matters set out in the Respondent’s Submissions (14 February 2024), at [14]-[17]. Weighing this criterion by reference to the facts and circumstances of this case, I treat it as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Prejudice[24]
The next criterion to be considered is any prejudice to the Respondent occasioned by the two day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[25] In this case, I treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances in this case.
Merits[26]
The principles stated Kyvelos v Champion Socks Pty Ltd[27] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … 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: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … 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 … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[28]
In Kornicki v Telstra-Network Technology Group,[29] a Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
The Applicant has ticked boxes in relation to asserted contraventions by the Respondent of ss.340, 344, 346 and 351 of the Act in her Form F8 Application form. She essentially complains about her alleged poor pre-dismissal treatment, and the unfairness of the method of her dismissal, but provides little to no substance as to her various claims of contravention of Part 3-1 of the Act.
The Respondent denies the Applicant’s assertions or claims as to contravention, and says that the Applicant was lawfully dismissed during a probationary period for reasons of poor performance. In this regard, the Respondent makes the following submissions:
“… the Respondent submits that the Applicant’s application has little or no prospects of success in circumstances where it is clear from the material available that the Application does not properly articulate any real and genuine claim that the dismissal of the Applicant was for unlawful reasons. The focus of the claims set out in the Application is on the alleged unfairness of the treatment to which she was subjected during her employment and the alleged lack of support provided to her to improve her performance. Apart from ticking a number of boxes in part 3.2 of the Application, the Commission will search the Application in vain for any properly articulated allegation that the Applicant was dismissed for an unlawful reason. Indeed, the Application contains no explanation of how the dismissal was for any of the reasons in the boxes that are ticked in the Application. It is worth noting that the Applicant has:
(a) ticked the box relating to section 346 (protection relating to “industrial activity”) but makes no allegations about any “industrial activity” in which she says she had engaged; and
(b) ticked the box relating to section 351 (discrimination) but then has failed to complete the box that asks her to specify the particular attribute founding the allegation – and made no allegation in any other part of the Application that sets out the grounds on which she says she was discriminated against.
As set out in the Response filed by the Respondent, the Applicant was terminated during her probationary period because her performance was not sufficient to meet the Respondent's expectations and requirements. In particular, the Respondent observed that the Applicant (in the very short time she had been employed with the Respondent) had:
(a) failed quality assurance metrics;
(b) engaged in seven regulatory and compliance breaches by:
(i) failing to read customer terms and conditions adequately or at all;
(ii) failing to leave contact logs on customer accounts;
(iii) failing to follow privacy verification; and
(iv) failing to obtain consent from customers in regards to an offer;
(c) not met average handling time metrics;
(d) not adhered to schedule metrics; and
(e) failed to follow work instructions.
In other words, the Applicant’s employment was terminated because she failed to perform to the standards expected during her probationary period, not for any unlawful or prohibited reason.”[30]
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Whilst one might say that a particular case has merit, that does not mean that it has reasonable prospects of success, or is unequivocally meritorious. It simply means that adverse action (i.e. dismissal) has occurred, and an Applicant asserts that he or she was subjected to such adverse action for a prohibited or unlawful reason (with the benefit of a reverse onus under s.361 of the Act). This is hardly extraordinary or exceptional. The rubber hits the road only where the adverse action is taken “because of” a prohibited reason, and in all cases the resolution of that issue will be subject to determinations as to witness credibility tested against documentary or other objective evidence, and factual findings. As SDP Richards stated in Wilson v Woolworths[31]:
“… the merits of the application have not been canvassed through the proper formal determinative process by which evidence is taken under oath and which is further adduced through the machinery of cross-examination and re-examination.”[32]
In this matter, the scant information, let alone evidence, of the contraventions asserted by the Applicant against the Respondent (even taking into account the reverse onus that is applied), mean that I am unable to reach a conclusion in favour of the Applicant as to the merits of her claim/s. I concur with the Respondent that the Applicant’s case on the merits is poor, and is more reflective of grounds in support of an unfair dismissal claim (as opposed to a general protections involving dismissal claim). I therefore treat merits of the Application in this matter as weighing against any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[33]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there are the same, or similar, characteristics and/or circumstances.[34] Neither party made relevant submissions in respect of this criteria.
I am not aware of any employees in a similar position to the Applicant, or cases, from a true comparator perspective, where there are the same, or similar, characteristics and/or circumstances to those of the Applicant (i.e. I am not aware, and have not been made aware by the parties before me, of any cases that are on all fours with the specific facts and circumstances of this case). I therefore treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[35]
On the basis of my reasons, conclusions and findings set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the “existence exceptional circumstances” in this case as that term has been described or defined in Nulty[36]. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 22 November 2023 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Maria Monteleone, appeared for herself.
Mr Ben Dudley, Partner, Seyfarth Shaw Australia lawyers, appeared with permission for ALINTA SERVCO Pty Ltd (Respondent).
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009 (Act).
[2] See Transcript for decision re permission being granted under s.596(2)(a) of the Act. Permission for the Respondent to be legally represented was not opposed by the Applicant.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, at [21].
[4] [2011] FWAFB 975.
[5] Ibid, at [13]-[15].
[6] [2018] FWCFB 901.
[7] Ibid, at [17], [19], [38]-[39].
[8] [2002] FCA 845.
[9] (1987) 16 FCR 167, at 184.
[10] Elias v Commissioner of Taxation [2002] FCA 845, at [62].
[11] (1964) 38 ALJR 293.
[12] Ibid, at 301. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at 40-42, per Mason J, with whom Gibbs CJ (30), Deane and Dawson JJ (71) agreed.
[13] [1958] VicRp 98; [1958] VR 628.
[14] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd[2011] FWAFB 8446, 9 December 2011.
[15] Ibid, at [12].
[16] Section 366(2)(a) of the Act.
[17] [2021] FWC 3903.
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[19] Ibid, at [40].
[20] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[21] Respondent’s Submissions, 14 February 2024, at [6]-[13].
[22] Nulty v Blue Star GroupPty Ltd , [2011] FWAFB 975, at [14] and [30].
[23] Section 366(2)(b) of the Act.
[24] Section 366(2)(c) of the Act.
[25] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[26] Section 366(2)(d) of the Act.
[27] (1995) 67 IR 298.
[28] Ibid, at 299 to 300.
[29] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[30] Respondent’s Submissions, 14 February 2024, at [20]-[22].
[31] [2010] FWA 2480.
[32] Ibid, at [23].
[33] Section 366(2)(e) of the Act.
[34] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[35] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[36] [2011] FWAFB 975, at [13].
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