Maria Tusa v St Vincent's Hospital Sydney Limited
[2023] FWC 2035
•15 AUGUST 2023
| [2023] FWC 2035 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Maria Tusa
v
St Vincent’s Hospital Sydney Limited
(C2023/3441)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 AUGUST 2023 |
Application to deal with contraventions involving dismissal – request for an extension of time – no exceptional circumstances – general protections application dismissed
Introduction
On 14 June 2023, Ms Maria Tusa (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 St Vincent’s Hospital Sydney Limited (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 made 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 relationship between the Applicant and the Respondent came to an end by way of dismissal on 9 March 2022. It is also not in dispute that the Applicant was aware of the cessation of her employment with the Respondent on 9 March 2022. I equally make this finding.[2]
Given that the Applicant has filed her Application on 14 June 2023, the Application has been filed around 441 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 30 March 2022 for it to have been filed within the requisite 21 day time period.
The matter was allocated to my Chambers on 11 July 2023, and Directions were issued to the parties that day programming the matter for hearing.
At the hearing on 11 August 2023, the Applicant appeared for herself, and Ms Ellen Davis, Group Industrial Relations Lead, St Vincent’s Health Australia, appeared for the Respondent.
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 Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[3] (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.”[4]
(emphasis added)
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.[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]:
“[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]
Reason for delay[8]
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[9], 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 the 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.[10] 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,[11] but this would be most unusual.
As I understand it, the Applicant’s reasons for delay in the filing of her Application over one year late, may be shortly stated, or summarised, as follows:
a) The Applicant sought advice from the Health Services Union (HSU) on 10 March 2022 (the day after her dismissal) as to her ability to challenge her dismissal. The advice she received from the HSU was that she had no ability to file any type of claim challenging her dismissal as she had been dismissed during her probationary period. The HSU also never advised the Applicant to go and speak to the Commission or the Fair Work Ombudsman (FWO) about her dismissal or other potential claims she could make.
b) In May 2023, the Applicant spoke to the Aboriginal Legal Service about her dismissal, and they advised her that she should lodge a claim with the Commission.
c) On 26 May 2023, the Applicant spoke to the FWO, and as a result of being told (for the first time) about general protections involving dismissal applications, she lodged her Application on 14 June 2021. In other words, the Applicant lodged her Application with the Commission within 21 days of her first being told by the FWO about general protections involving dismissal applications.
d) In view of (a) to (c) above, the Applicant submits that she is blameless in the time that it has taken for her to file her Application.
e) Since her dismissal, the Applicant has been suffering from financial hardship, anxiety and depression, which have contributed to her delay in the filing of her Application.
In its submissions, the Respondent makes the following points:
a) The period of delay (441 days) is a significantly long period of time.
b) The Commission cannot be satisfied on the evidence as to any representative error by the HSU.
c) Whatever advice that the Applicant may or may not have received from the HSU in March 2022, she is by no means blameless.
d) The Applicant has not provided any evidence of financial hardship that can be said to justify the over one year delay in the filing of her Application.
e) Whilst it might be acknowledged that a dismissal can cause stress and anxiety, the Applicant has not provided any evidence of depression and anxiety above and beyond what a reasonable person would be expected to experience in the circumstances. Further, the Commission cannot be satisfied that there is an evidentiary basis for a finding that the Applicant’s depression and anxiety were a reason for the delay by the Applicant in the filing of her Application over one year out of time.
I do not accept that the evidence discloses that the Applicant’s purported financial stress or hardship justifies or explains the delay in the filing of her Application over one year late.
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.[12] 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 in the filing of her Application over one year late.
In Bianca Mamo, Deputy President Easton outlined issues associated with illness (including mental illness) and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
[25] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”[13]
(footnotes omitted)
In concurring with and adopting the foregoing principles,[14] I do not accept that the evidence discloses that the Applicant’s claims as to anxiety and depression justify or explain the delay in the filing of her Application over one year late.
Reliance upon representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark).[15] In Davidson v Aboriginal Islander Child Care Agency,[16] a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”
(emphasis added)
The principles espoused in Clark have been considered and applied in various decisions of this Commission.[17] They identify that the conduct of an Applicant is a central consideration in determining the existence of representative error. I equally rely upon those principles.
In this case, I do not accept that the evidence before me discloses representative error on the part of the HSU.[18] But even if it might be said that the HSU did engage in representative error, the Applicant has certainly not shown (on the evidence) that she is blameless in filing her Application over one year late. It is not sufficient for the Applicant to simply say that I got the wrong advice from the HSU, found out that such advice was wrong (over a year later), and am therefore blameless in filing my Application over one year late because I simply relied upon what I was told, until I was told otherwise. As Ms Davis (on behalf of the Respondent) pointed out during the hearing, that the Applicant had the capacity, time and means to make her own telephone and internet inquiries, and/or do her own research, yet there is no evidence whatsoever that the Applicant did any of these things.
Having regard to the evidence and submissions of the parties, and in view of the findings I have made in foregoing paragraphs, 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, explain her more than one year delay in the filing of her Application. 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 her dismissal[19]
The Applicant was aware of her dismissal by the Respondent on the day that it took effect (i.e. 9 March 2022). The evidence identifies that the Applicant wrote to the Respondent on 17 June 2022 complaining about her dismissal, and lodged a complaint against the Respondent with the Health Care Complaints Commission on 18 November 2022. It follows that the Applicant took steps to dispute her dismissal.
However, simply because an employee puts their employer on notice that they dispute their dismissal does not mean that this criteria ought automatically weigh in favour of a finding as to the existence of exceptional circumstances.
The issue of whether or not an employer was or was not on notice that their former employee disputes their dismissal might be significant on a question of prejudice, but what weight it is given for the purposes of s.366(2)(b) of the Act is a matter for the relevant decision-maker.
An employer notified that an employee disputes their dismissal is entitled to assume, or work on the basis, that the employee has 21 days post their dismissal taking effect to file a statutory unfair dismissal or general protections involving dismissal application. In this case, the actions taken by the Applicant to dispute her dismissal have occurred months after the 21 day statutory time limit to file her general protections involving dismissal application had expired.
In 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 in this case.
Prejudice[20]
There is clear prejudice to the Respondent in having to engage with, or otherwise defend, an application that has been filed well over a year out of time. That prejudice manifests itself in the Respondent having to obtain information and evidence from persons or sources that may have moved on from the business, or do not hold a sufficient recollection of relevant events. I therefore treat this criterion as a factor that weighs against any finding as to the existence of exceptional circumstances.
Merits[21]
The principles stated Kyvelos v Champion Socks Pty Ltd[22] (Kyvelos), albeit in relation to a predecessor of the Act, still remains 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 …”.[23]
In Kornicki v Telstra-Network Technology Group,[24] the 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 says that her dismissal occurred in contravention of ss.340, 343, 344, 346 and 351 of the Act.
The Respondent denies the Applicant’s claims as to contravention, and says that the Applicant was lawfully dismissed during her probationary period because of:
a) her disrespectful and unprofessional behaviour (which posed a risk to the wellbeing of her colleagues); and
b) her failure to take on feedback about such matters, or otherwise improve her behaviour.
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 the Applicant’s case has merit (or is arguable), one cannot otherwise say that the Respondent’s defences (even taking into account issues of reverse onus) are unarguable, or are absent merit. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable.
But the fact that a case is arguable, 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 reason. The rubber hits the road only where the adverse action is taken “because of” a prohibited reason, and in most 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[25]:
“… 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.”[26]
In summary, to reach a conclusion beyond the threshold of ‘arguable’ in this case would require close scrutiny in a contested hearing, which is completely unwarranted in an out of time (or other interlocutory) hearing (and has not occurred in this case before me).[27] I therefore treat merits of the Application as no more than a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.[28]
Fairness as between the Applicant and other persons in a similar position[29]
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.[30] 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 as those of the Applicant. Further, even having regard to the previous out of time decisions that I am aware of, none of those cases are on all fours with the specific facts and circumstances of this case. I therefore treat this criterion as a neutral consideration.
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).[31]
On the basis of my reasons 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. 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 14 June 2023 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Maria Tusa (Applicant), appeared with permission on behalf of the Applicant.
Ms Ellen Davis, Group Industrial Relations Lead, St Vincent’s Health Australia, appeared for the Respondent.
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009 (Act).
[2] See Termination of Employment letter dated 9 March 2022.
[3] [2011] FWAFB 975.
[4] Ibid, at [13]-[15].
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, at [21].
[6] [2018] FWCFB 901.
[7] Ibid, at [17], [19], [38]-[39].
[8] Section 366(2)(a) of the Act.
[9] [2021] FWC 3903.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[11] Ibid, at [40].
[12] Nulty v Blue Star GroupPty Ltd , [2011] FWAFB 975, at [14] and [30].
[13] [2021] FWC 3903, at ]19]-[25].
[14] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[15] (1997) 74 IR 413.
[16] (1998) 105 IR 1.
[17] See: Officeworks Ltd v Parker[2014] FWCFB 5779, at [14]. See also: Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647.
[18] Further, it cannot be said to be a responsibility or role of the HSU to refer the Applicant to the Fair Work Commission or the Fair Work Ombudsman.
[19] Section 366(2)(b) of the Act.
[20] Section 366(2)(c) of the Act.
[21] Section 366(2)(d) of the Act.
[22] (1995) 67 IR 298.
[23] Ibid at 299 to 300.
[24] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[25] [2010] FWA 2480.
[26] Ibid, at [23].
[27] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[28] Transcript, PN213-PN214.
[29] Section 366(2)(e) of the Act.
[30] 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];
[31] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
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