Matt Collier v Goodlife Operations Pty Ltd
[2023] FWC 2536
•10 OCTOBER 2023
| [2023] FWC 2536 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Matt Collier
v
Goodlife Operations Pty Ltd
(U2023/7228)
| COMMISSIONER YILMAZ | MELBOURNE, 10 OCTOBER 2023 |
Application for an unfair dismissal remedy – contested date of dismissal - whether lodged out of time – application dismissed
Mr Matthew Collier was a casual Member Support Representative with Goodlife Operations Pty Ltd, located at the Goodlife Health Club in Glen Iris. He submits his employment commenced on 27 November 2017 and his last shift was on 30 April 2022. Mr Collier contends that he does not know the actual date of dismissal but that he was first informed of his dismissal on 2 August 2023. He submits that he filed his application promptly on 6 August 2023.
Goodlife Operations Pty Ltd (Goodlife) operates health clubs in the fitness industry. It confirmed its employment of Mr Collier as a casual Member Support Representative. It submits that Mr Collier was informed of his dismissal on 3 July 2022 and that this was the date of dismissal. It confirmed Mr Collier’s submission that his last shift worked was on 30 April 2022 however it submits he commenced employment on 12 December 2017. It further contends that Mr Collier not only knew his employment was terminated but that he did not work for well over 15 months and that he only raised a query regarding his employment status on 11 July 2023.[1] Goodlife object to the application submitting that it is well outside the 21-day statutory time frame and that there are no exceptional circumstances to grant such an extension of time.
The date of dismissal is contested. If Mr Collier was dismissed as he contends on 2 August 2023, then his application is within the 21-day time period. However, if the dismissal occurred in 2022, as Goodlife asserts, the application is late.
Section 394(2)(a) and (b) of the Fair Work Act 2009 (the Act) states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect… or within such further period as the FWC allows pursuant to (3).’ Extensions of time are allowed where there are exceptional circumstances. Therefore, the first question to be determined is the date of dismissal.
Both parties were self-represented. Mr Collier gave sworn evidence and Mr Dimaculangan, P&C Business Partner was a witness for Goodlife.
The date of dismissal
The Commission may order a remedy for dismissal if a person is protected from unfair dismissal. A person is protected if that person is an employee who has completed the minimum employment period and is covered by an industrial instrument or meets the high-income threshold.[2] The period of employment in the case of a casual employee includes service if employed as a regular casual and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[3] Further the employee must have been dismissed. The meaning of dismissed is where a person’s employment is terminated at the initiative of the employer, or the person resigned from their employment, but were forced to do so because of conduct, or a course of conduct engaged in by the employer.[4]
An application must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows.[5] Therefore the date of dismissal, if in dispute between the parties, must be determined. The date of dismissal is relevant to determine whether the application is on time, or if late, what was the period of delay in filing the application. Mr Collier asserts his dismissal took effect when the dismissal was confirmed on 2 August 2023, while Goodlife submits that the dismissal took effect on 3 July 2022 and that Mr Collier was not employed on a regular and systematic basis and Mr Collier’s action do not suggest he had a reasonable expectation of continuing employment from at least early 2022.
The submissions
Mr Collier submits that since November 2017 he had worked as a casual employee and worked almost every weekend. He submits that he had a continuous period of employment from 27 November 2017 until his last shift on 30 April 2022.[6] He further submits that he had an unblemished record until an incident in the workplace involving an ex-girlfriend which resulted in a warning. He says his warning was disproportionate to the alleged conduct, and his shifts were dropped from the roster following the warning in March 2022 until his last shift in April 2022.[7]
Mr Collier gave evidence that he was removed from the group Facebook messenger chats in June or July 2022. The chat group, he submits was the method adopted by his manager to circulate the forthcoming monthly roster. He further states that he regularly checked the roster and noticed that his name ceased to appear from either May or June 2022.[8]
Once his name was removed from the roster, he submits that he contacted his manager on 21 and 22 April 2022 (by email and phone respectively) and was told there were no other shifts.[9] Mr Collier did not tender a copy of this email.
On 2 May 2022, Mr Collier visited the gym to obtain his payslips to apply for Centrelink[10] and on 3 May and 6 June 2022 his manager contacted him querying whether he was available to work, but he noted that he was not placed on the roster.[11]
Mr Collier states that after his removal from the Facebook messenger chats and the roster, he no longer went to or contacted the Glen Iris gym. Also in sworn evidence he stated that he “felt shunned” and was “beyond capability” to question his employment status for a couple of months because of his mental health condition. When pressed regarding the time frame he submitted this was around 6 months, from June/ July to December 2022. Mr Collier did give evidence that he joined another gym which he still pays for but instead went to the Carnegie Goodlife gym. This was until he returned to the gym in mid-2023 and his friend at the gym advised him that one of the regional managers had been saying that Mr Collier was dismissed and his gym membership expired in April 2023.[12] Mr Collier tendered in evidence a photo of his gym membership record with Goodlife which he says was given to him by a friend in August 2023 in preparation of these proceedings.[13]
Mr Collier gave evidence that he had never been made aware of his dismissal from his employer until August 2023.
Mr Paul Dimaculangan, P&C Business Partner gave evidence for Goodlife and says that the internal HR systems show that Mr Collier was dismissed on 3 July 2022 due to inactivity. Due to the delay and staff from around that time no longer being employed, no evidence could be presented to confirm what may or may not have been verbally told to Mr Collier at the time of the dismissal. Mr Dimaculangan submitted that Goodlife’s process is for staff to be given a couple of days’ notice and that the system then ordinarily sends correspondence to the person that they have been removed due to inactivity.[14] However, he was unable to locate the correspondence nor confirm whether the correspondence was sent to Mr Collier. Mr Dimaculangan confirmed the entry in the system was on 4 July 2022 at 4.30pm by P&C.
Mr Dimaculangan contests that Mr Collier was dismissed due to misconduct as asserted. Regarding the incident that led to the warning Mr Dimaculangan tendered in evidence the warning dated 30 March 2022 and associated correspondence.[15] He further submits and confirms that following the warning Mr Collier continued to work at the gym until 30 April 2022 with a change to his shifts by the Club Manager.
In addition, Mr Dimaculangan tendered in evidence correspondence sent to Mr Collier dated 9 June 2022 introducing a consultation period relating to the merger of the Membership Consultant with the Member Services Representative role into the role of Member Support Consultant, expected to take effect on 4 July 2022.[16] Mr Collier confirmed his private email address and evidence of the correspondence being sent to Mr Collier was confirmed by Goodlife. I do observe that Mr Collier denied seeing the correspondence regarding restructure until these proceedings.
Mr Dimaculangan submitted that there is no evidence of Mr Collier contacting P&C about his employment status or the restructure and the last communication from him was the response to his Club Manager in June 2022 about his availability.[17] In response to Mr Collier’s evidence, Goodlife submits that Mr Collier assumed he was no longer employed on 2 May 2022 when he attended the gym to ask for his payslips so that he could register for Centrelink, and that he neither contacted Goodlife post June 2022 for shifts nor provided any documentation about his unavailability.
Consideration
Mr Collier presented as a very articulate and forthright person, he was able to present his case capably and even cross-examined Goodlife’s witness with sound judgement and self-control. I also found Mr Dimaculangan’s oral evidence direct and candid, his evidence corroborated his written materials and unprompted recognised missing evidence regarding communication to Mr Collier in early July 2022.
On the evidence I do find that Mr Collier was not dismissed for misconduct as he asserts. The uncontested evidence is that he continued to work after his warning of 30 March 2022 until 30 April 2022. In addition, I do observe that Goodlife tendered in evidence not one incident of discipline but two. One incident related to a complaint dated 24 March 2022 verbally and then confirmed in writing by the Club Manager about Mr Collier’s conduct towards the complainant and her friend. This complaint that contains reference to inappropriate comments and conduct towards the two female gym members led to a discussion on 29 March 2022. Mr Collier received a record of discussion and warning[18] dated 30 March 2022. The emailed document confirms three issues of concern, makes clear that a first written warning was appropriate and to move forward Mr Collier is to communicate respectfully and professionally and that any further inappropriate conduct will result in disciplinary action. The record of discussion further states that his conduct is to be reviewed on 30 May 2022, which in the Club Manager’s view is a reasonable period to improve conduct. The covering email by the Club Manager tendered by Mr Collier, attaches the warning but also states that he has been removed from Sunday shifts on the roster where he would have been on his own, however his shifts with other employees remained as a way to earn back his manager’s trust.[19]
There was an earlier disciplinary incidence that occurred on 1 February 2022, where Mr Collier was spoken to and received in writing instructions to reset expectations, having discussed complaints of inappropriate conduct and communications in the workplace.[20] Mr Collier was reminded of the need to comply with the Code of Conduct and attend to training on workplace bullying and sexual harassment by 9 February 2022.[21] This communication is not a warning but an outcome of a counselling session.
I do observe that Mr Collier acknowledged receipt of his manager’s warning which was sent via email to his private email address. This is the same email address where the earlier record of discussion of February 2022 was sent. Further it is the same email address where the correspondence from P&C was sent regarding the restructure and his appointment materials. While Mr Collier asserted that he had not seen the email from P&C, I think it unlikely as he says that he actively checked the chats and roster and saw that he was not listed on the roster from June or July 2022. Email correspondence was an accepted and common form of communication between Mr Collier and Goodlife. There were communications until 6 June 2022 with his Club Manager, his text to his manager on 6 June is not a response to a text message but a different form of communication. As he submits that she had asked him for his availability it appears to have been a personalised message, most likely an email rather than a group chat message. I do observe no group chat messages were tendered and selective emails were tendered by Mr Collier. The tendered evidence supports email correspondence as a common and accepted mode of communication, and as such it is reasonable that Mr Collier did regularly check his emails.
While Mr Collier approached Goodlife on 2 May 2022 having formed the view that he was dismissed because he was not on the May roster, while giving evidence he states that he ceased all communication in June or July but subsequently frequented the Carnegie gym. The reference to June and or July 2022 coincides with the letter announcing the restructure covering the period June to July 2022. This correspondence on balance was most likely seen by Mr Collier as he acknowledged that his Club Manager no longer rostered him for shifts. Other than the letter regarding restructure, there was no other evidence of any action by Goodlife for Mr Collier to feel “beyond capability” or “shunned”. The letter concerning the restructure is plainly clear on the process, the reasons for the restructure, the effect of the restructure on employees both weekly and casual and invites contact with the Club Manager to discuss the decision and options for redeployment.
Instead of seeking redeployment Mr Collier ceased all communications. I also observe that Mr Collier gave evidence that when he frequented the Carnegie gym, he tapped in with his membership fob for a few months and then simply walked in to use the resources once he was known to the staff. This evidence was somewhat peculiar, suggesting that he was either excused from tapping in because he assumed he was a staff member, or that he knew that his gym membership was to end or had ended on the basis that he received no shifts since April 2022. While the evidence does not support a reasonable conclusion that Mr Collier thought he was a staff member, I need not resolve the motivation for failure to tap in. I find on balance of probabilities that Mr Collier was aware that his employment had come to an end on 3 July 2022, consistent with the letter announcing the restructure processes and as he made no inquiries for redeployment. I do not accept that Mr Collier was dismissed on 2 August 2023 when Mr Dimaculangan in email confirmed that the employment record shows termination due to inactivity on 3 July 2022. Mr Dimaculangan tendered in evidence the email chain initiated by Mr Collier commencing on 11 July 2023. I do observe that Mr Collier asks the Club Manager at Armadale (another gym) to confirm if he has been dismissed and alleges that he has been “stonewalled”.[22] Mr Collier provided no evidence of being “stonewalled”. His evidence was that he ceased all contact with his Club Manager on 6 June 2022. On this basis I accept that Mr Collier made no direct contact after 6 June 2022 to the Club Manager or P&C and I find that having received the letter regarding restructure, he understood that unless he was given shifts or sought redeployment that his employment had come to an end. Based on this evidence it I unreasonable to conclude that he expected ongoing employment. Further I find that the refusal of entry by the Carnegie staff on the basis that he was not a member nor a staff member eligible to use the gym resources, he then contacted the Armadale Club Manager allegedly seeking confirmation if he was dismissed. On balance and in consideration of the evidence I am satisfied that Mr Collier was dismissed on 3 July 2022, and he knew that was the case.
Having determined that the dismissal date was 3 July 2022, I now consider Mr Collier’s extension of time application.
The extension of time application
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[23] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[24] It is a high bar.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the Delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[25]
The period of the delay is from midnight of the 21st day until the date of the application. In this matter the delay is a period of 378 days or around 12.5 months.
Mr Collier submitted that he was unsure of when he was dismissed and promptly filed his application on 6 August 2023 four days after P&C confirmed that he was dismissed in 2022. I have found that Mr Collier was dismissed on 3 July 2022 following the outcome of the restructure in accordance with the letter sent to his private email address. The dismissal followed after no redeployment occurred and Mr Collier made no further contact with his Club Manager or Goodlife’s P&C after 6 June 2022. By Mr Collier’s own admission, he took no action to challenge his dismissal or make an unfair dismissal application until August 2023. He does however submit that due to his mental health condition he was incapable until about December 2022 at least.
Mr Collier gave oral evidence of his mental health condition and states that from the period June or July 2022 until December 2022 he was not capable of any function other than play video games, take his dog for a walk, sitting in the park and talking to friends. He states that he attended regular appointments with his medical practitioner via telehealth. While he did state initially that he did not go to the gym for a few months and that he joined another gym, he did not provide any evidence or confirm timeframes other than subsequently stating that he did not go to the gym until around or after December 2022.
Mr Collier tendered in evidence a letter from his Psychiatrist dated 4 September 2023. The letter describes Mr Collier’s mental health condition and that he has been a patient since February 2020 receiving treatment and medication. The letter is intended to support an extension of time on the basis that Mr Collier suffers from anxiety symptoms leading to avoidance (of emails and correspondence) and not being able to leave his home easily. It states that the symptoms have led to the delay and his inability to follow up on his application to the Fair Work Commission.
In relation to this letter, I make the following observations. The letter is dated 4 September 2023, almost 15 months after Mr Collier was dismissed and about 16 months after he last worked for Goodlife. The letter makes no reference to Mr Collier’s capacity to get online to make an application over any specific period of time. Nor does the letter confirm why in August 2023 (before the letter) he was capable of making an application but for no other period considering the dismissal took effect on 3 July 2022.
In relation to this discrepancy, Mr Collier implored that I take it to mean from the date of dismissal and the explanation covers the full period of delay, even though no time frame or even a date of dismissal is stated in the letter. I cannot accept Mr Collier’s submission that the letter be read broader than what is stated in writing.
Mr Collier provided no further evidence other than his statement that he was mentally incapacitated as the reason he could not file an earlier application other than on 6 August 2023. I also observe his evidence that from June or July to around December 2022 he occupied his time with video games, going to the park, taking his dog for a walk, talking with friends and perhaps going to the gym (or at least frequenting the gym from December 2022). The letter from the psychiatrist fails to provide any insight as to why Mr Collier can leave his home to perform various tasks or engage in video games and go online but unable to file a simple unfair dismissal application. Mr Collier did confirm in evidence that using the website and making the application was a simple and easy task. These inconsistencies, rather than validate the reason for delay raises further questions that remain unanswered.
Given that Mr Collier stated at the outset that he did not know when he was dismissed, he could not answer why he did not think he was dismissed at any time given that he last worked for the gym as a casual on 30 April 2022, and historically worked on a regular and systematic basis each week, nor did he explain why he thought he was still employed after 16 months of inactivity as a casual employee. The response from Mr Collier was that he expected that he would have been advised that his employment was terminated. As already stated in this decision, Mr Collier refutes that he had seen the restructure letter even though it was sent to his private email address at a time that he maintained communication with Goodlife. From Mr Collier’s evidence it is difficult to reconcile how he was still employed if no shifts were offered and he made no attempt to contact his employer, further he appeared to have no expectation of any work.
I cannot ignore the letter from the psychiatrist which I accept does substantiate a medical condition, however, it is an inadequate explanation for the delay of 12.5 months. In the circumstances I do not find the reason for delay exceptional, acceptable or reasonable. The reason is limited, and the period to which it practically applies is unclear but does not with all certainty cover a 12.5-month delay. The reason for delay is one consideration, I must now consider the balance of considerations identified in s.394(3).
Whether the person first became aware of the dismissal after it had taken effect
Mr Collier contends that he did not know when his dismissal took effect. While there is no evidence of a letter that confirmed the dismissal on 3 July 2022, the letter announcing the restructure, the process and implication on jobs was plainly clear. The letter states the consequences of merging the Member Consultant (Membership) and the Member Services Representative (otherwise known as the Receptionist, which was the role held by Mr Collier) is the Member Support Consultant:
‘… The new role and structure will take effect from Monday 4 July 2023.
As a result, your current role will be removed and you will now enter into a period of consultation as we work through the new proposed staffed hours at your club. As the new Member Support Consultant is a blend of both existing roles, there will be automatic redeployment opportunities for the majority of team members. Some of our clubs will have reductions to their staffed hours which means some team members might have changes to their existing roster moving forward.
Over the coming days your manager will confirm automatic redeployment or offer options regarding a change of hours for your feedback. Whilst every effort will be made to retain your existing hours at your home club, should we be unable to offer you similar hours we will consider alternative clubs in an effort to retain you in the business. Consultation will commence immediately and will come to an end on 24 June 2022 whereby a final decision on redeployment or redundancy will be made.’
The FAQs attached refer to the priority of redeploying full-time and part-time staff and where no redeployment is available, staff will be made redundant (if applicable). Mr Collier was a casual employee, his contract of employment confirmed that his hours were based on the requirements of the business. He did not contest his employment status as a casual, and the evidence shows that hours did change even though he was employed on a regular basis.
Having reviewed the material regarding the restructure, it is apparent that had Mr Collier not been redeployed his employment would have terminated at the time the new structure was implemented on 4 July 2022. Mr Collier did not act on the notification regarding the restructure, nor acted following his awareness that he was no longer on the roster from June or July 2022. This evidence does not weigh in his favour for an extension of time.
Action taken to dispute the dismissal
By Mr Collier’s own admission, he took no action after he was dismissed. Interestingly, the email chain commencing on 11 July 2023 when he contacts the Armadale Club Manager, he does not put the manager on notice that he challenges his dismissal, instead he says, “Just looking for some closure – Did Cienna/ Liam just tell you not to give me anymore shifts after I complained?” He does not elaborate what the complaint is about. Mr Collier asserts that he acted promptly in challenging his dismissal in August 2023.[26] This email correspondence did not put Goodlife on notice of a contest of dismissal and more to the point no notice of an unfair dismissal application. The lack of action to dispute the dismissal does not weigh in favour of Mr Collier’s application.
Prejudice to the employer
Mr Collier contends there is no prejudice to Goodlife by the delay in filing the application.[27] The Respondent also does not contend unfairness or disadvantage. Despite there being no prejudice, this consideration does not weigh in favour of the application.
Merits of the application
Mr Collier submits that his dismissal was unfair because firstly he disputes that his conduct was misconduct, secondly that the evidence does not support grounds for dismissal and thirdly the dismissal was harsh due to the economic effect on his circumstances and further the dismissal on the basis of the alleged conduct was disproportional. In addition, he submits that he did not know that he was dismissed until an employee at another gym informed him.[28] This submission relies on the premise that his employment was dismissed because of his conduct in March 2022. The evidence shows that Mr Collier was not dismissed because of his conduct towards two female club members, but rather he received a first warning and continued to work until 30 April 2022. Mr Collier was employed as a casual and his hours of work were set according to the needs of the business. There was no evidence of a promise of regular work and certainly no evidence of a full-time or part-time arrangement. Mr Collier submits that he experienced economic disadvantage from the dismissal. Having considered the evidence, it is surprising that he did not challenge the dismissal at the time that he was removed from the roster in June or July 2022, but instead waited until August 2023. He further submits he should have been given notice of termination. Mr Collier ignores the restructure letter of 9 June 2022. In any event, as a casual employee he is not entitled to notice of termination, more than what Goodlife would afford to all casual employees.
The Respondent submits there is no unfairness in the dismissal, raising the point that Mr Collier was a casual employee and there was no commitment to him for ongoing work. It satisfactorily demonstrated that the dismissal was not for misconduct as alleged, but because of inactivity as a casual employee. Also, in taking into account the restructure over June to July 2022, it noted that its priority was to its full-time and part-time employees to redeploy. It does question whether Mr Collier can with any conviction argue unfairness as he did not question his dismissal until August 2023.
There is no need to fully test merit in an extension of time, nevertheless, Mr Collier’s grounds to allege unfair dismissal are either misconceived or groundless. On the basis of the submissions and the evidence presented, Mr Collier’s dismissal was not because of any alleged misconduct, but because of inactivity as a casual. His last shift was on 30 April 2022. In June 2022 a restructure was announced and implemented on 4 July 2022. Mr Collier was not deployed, nor did he take any action to express interest in redeployment either into another role or at another location. For the reasons provided in this decision, merit does not weigh in favour of an extension of time.
Fairness as between the person and other persons in a similar position
In respect to this consideration, Mr Collier refers to fairness to mean that he expected to be told clearly and not have to follow-up himself to inquire if he was dismissed. He states that he expected that the termination would not immediately follow a warning and considered this procedurally unfair. He says that he expected a long-term employee would have been treated with more professionalism.[29]
The Respondent provided no information regarding this consideration.
Neither party addressed the issue of fairness in relation to any other person in a similar position. While Mr Collier intimated that other casuals may have continued engagement with Goodlife, there was no evidence regarding fairness. On this basis I consider this to be a neutral factor in considering an extension of time.
Conclusion
Having considered the date of dismissal, I have concluded that Mr Collier’s employment was dismissed at the latest on 3 July 2022, as he was not redeployed and not offered any further work following the introduction of the restructure effective from 4 July 2022. The employment record[30] which was confirmed as a contemporaneous record confirms the termination on 3 July 2022. The record does not stipulate a reason, and even though Mr Dimaculangan offered the reason as inactivity, it is a description that aligns with the facts that redeployment or continuing employment was not offered to Mr Collier and it disputes Mr Collier’s assertion that he was dismissed for misconduct.
Having resolved the date that the dismissal took effect, Mr Collier’s application for unfair dismissal did not meet the 21 day timeframe required by the Act to file an application. In fact, the application was late by 378 days, a period of around 12.5 months. This is a significant delay that requires reasons that are exceptional together with the balance of considerations under s.394(3) to warrant an extension of time. Mr Collier relied on his mental health condition and provided a letter from his psychiatrist. While I acknowledge that Mr Collier has a genuine medical condition and that he would have been impacted by the dismissal most likely causing distress, a lack of credible explanation for the long period of delay cannot be ignored. Mr Collier did not satisfy the requirements of a credible reason and did not meet the high bar of exceptional circumstances. Having considered the reason for delay and each of the provisions identified in subs.394 (3) (a) through to (f), I do not find either one or a combination of the considerations collectively to favour an extension of time. Only one consideration – fairness I consider a neutral factor. For these reasons Mr Collier’s application for an extension of time is not granted and accordingly his application is dismissed.
An order[31] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr M. Collier on his own behalf.
Mr P. Dimaculangan for the Respondent.
Hearing details:
Tuesday 3 October 2023
Microsoft Teams
[1] Respondent’s Outline of Argument: Objections, question 1h.
[2] Section 382.
[3] Section 384(2)(a).
[4] Section 386(1).
[5] Section 394(2).
[6] Applicant’s Outline of Argument: Objections, questions 2f-h.
[7] Applicant’s Outline of Argument: Extension of Time, question 7, Exhibit A1- statement of evidence and oral evidence.
[8] Oral evidence.
[9] Exhibit A1- Applicant’s Statement of Evidence.
[10] Ibid and oral evidence.
[11] Exhibit A1, attachment MC4 and oral evidence.
[12] Oral evidence.
[13] Exhibit A1 attachment MC1.
[14] Oral evidence.
[15] Exhibit R1, Respondent’s Statement of Evidence attachments 2 and 3.
[16] Exhibit R1attachment 6 Email of 6 June 2022 showing letter and FAQ attached, attachment 7 letter, and attachment 8 copy of the FAQ.
[17] Oral evidence.
[18] Exhibit R1, attachment 4.
[19] Exhibit A1 attachment MC3.
[20] Exhibit R1 attachment 2 dated 4 February 2022.
[21] Ibid.
[22] Exhibit R1 attachment 10 email chain between Mr Collier, Mr Dimaculangan and Ms B Gale (Club Manager – Armadale).
[23] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[24] Ibid.
[25] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[26] Applicant’s Outline of Argument, para 5.
[27] Applicant’s Outline of Argument, para 6.
[28] Applicant’s Outline of Argument, para 7.
[29] Applicant’s Outline of Argument , para 8.
[30] Exhibit R1 attachment 9.
[31] PR766748.
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