Michelle Secombe v Journey Early Learning

Case •

[2022] FWC 2330

•

12 SEPTEMBER 2022
[2022] FWC 2330

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michelle Secombe
v

Journey Early Learning

(U2022/8125)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 12 SEPTEMBER 2022

Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.

  1. Ms Michelle Secombe made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 6 August 2022. The respondent, Journey Early Learning, objects to the application on the basis that:[1]

(a)   Ms Secombe did not meet the minimum employment period; and

(b)   the application for an unfair dismissal remedy was not filed within 21 days after the dismissal took effect.

  1. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). This decision deals with the issue of whether the Commission should allow Ms Secombe a further period of time to make her unfair dismissal application pursuant to s 394(3) of the Act.

  1. For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent’s jurisdictional objection is upheld and Ms Secombe’s application for an unfair dismissal remedy is dismissed.

Background

  1. Ms Secombe commenced employment with the respondent on 4 October 2021 as a Centre Manager at the respondent’s newly acquired Lara facility.[2] Prior to this, Ms Secombe was employed by Kids on Rennie since 28 December 2019,[3] which was acquired by the respondent on or about 4 October 2021. Both businesses provided child educational services.

  1. As part of the acquisition, Ms Secombe commenced with the respondent on a six month probationary period.[4] Most other aspects of the acquisition are not before the Commission.

  1. In the months subsequent to the acquisition on 4 October 2021, a number of transitionary steps were taken to integrate the Lara facility into the respondent’s business.[5] Ms Secombe contends that the transition was not smooth and that her skills and experience were used to facilitate the transfer,[6] and the respondent contends that it was not satisfied with Ms Secombe’s performance.[7] The various steps were set out in the witness statements of the respondent’s Group Operations Manager, Mr Brodie Tebbutt[8] and Operations Manager, Mr Josh Partridge[9] and in Ms Secombe’s materials. These matters are discussed in further detail later in this decision.

  1. Ms Secombe was dismissed on 4 March 2022 in a meeting with Mr Tebbutt and Mr Partridge.[10] The letter of termination sent after the meeting on 4 October 2022 relevantly states as follows:

“I am writing to you to advise you that we are exercising our employers right to terminate your employment under probation and as per the terms of your contract.

Your employment will end immediately & your final day of employment will be today 4th March 2022. Based on your length of service, your notice period is 1 week. In lieu of receiving this notice, you will be paid out your notice period. You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment including superannuation.”[11]

  1. It is not in contest that the termination letter inaccurately states that Ms Secombe was paid one week in lieu of notice. The parties agreed that Ms Secombe was paid five weeks in lieu of notice consistent with clause 27 of her contract of employment with the respondent, which is in terms consistent with s 117(3) of the Act.

Extension of time

  1. Ms Secombe’s employment with the respondent was terminated on 4 March 2022. It follows that the 21-day statutory timeframe for filing an application for an unfair dismissal remedy expired at midnight on 25 March 2022. Ms Secombe’s application was received by the Commission on 6 August 2022 and was therefore made 134 days outside the 21-day statutory timeframe.

  1. The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[12] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.

  1. Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(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.

  1. These matters are considered in the analysis which follows.

Consideration

Reason for the delay: s 394(3)(a)

  1. The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to a credible, acceptable or reasonable explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[13]

  1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application to the date the application was filed, being from 26 March 2022 to 6 August 2022.[14] However, the circumstances from the time of the alleged dismissal must be considered in order to determine the reason for the delay beyond the 21-day period.[15]

  1. Ms Secombe contends that she was only in a position to pursue her unfair dismissal application at the time it was filed on 6 August 2022.[16] She submits that she had a medical condition, leading to hospitalisation, that prevented her from filing the application at an earlier point.[17] Ms Secombe relied upon medical evidence explaining her condition, the treatment and the time spent as an inpatient in hospital, and this was largely substantiated at hearing. But for the points of contention addressed in this decision, the respondent does not challenge Ms Secombe’s account, and I found her to be a credible witness.

  1. Ms Secombe’s account of her health issues commences in early February 2022, following receipt of a third booster dose of the COVID-19 vaccination. Ms Secombe, who was not feeling well, attributed her health concerns to a bad reaction to the vaccine, but continued to work, feeling compelled to do so as people relied on her.

  1. After her 4 March 2022 dismissal, Ms Secombe made an appointment with her general practitioner as she continued to feel unwell. This appointment took place on 7 March 2022. Ms Secombe got blood work done on 8 March 2022. Her general practitioner called her that night and advised her to go to hospital immediately.

  1. Ms Secombe was admitted into hospital late on 8 March 2022.[18] She was diagnosed with “sigmoid diverticulitis”[19] and had an abscess in her bowel. On 8 March and 16 March 2022, Ms Secombe emailed Mr Tebbutt noting she was in hospital but that she wanted to attend a closure meeting offered by Mr Tebbutt to discuss the dismissal.[20] Ms Secombe was placed on antibiotics and was discharged from hospital on 17 March 2022, seemingly due to “bed shortages,” and returned home to continue treatment by way of antibiotics.

  1. The hospital records, set out in a letter prepared by Dr Mollie Watson at Barwon Health – University Hospital Geelong, suggest that Ms Secombe remained at home during the period between 17 March and 29 March 2022.[21] It appears that there was an exchange of emails on 28 March 2022 between Mr Tebbutt and Ms Secombe in relation to the mutual collection of property. In this email exchange, Ms Secombe stated that she was in hospital on 28 March 2022.[22] While no explanation was provided for this date discrepancy, I do not consider it necessary to make a finding as to whether Ms Secombe returned to hospital on 28 March or 29 March 2022. At the hearing, Ms Secombe explained that during this period at home she was on daily painkillers, completely bedridden and was unable to undertake any of her usual functions.

  1. Ms Secombe returned to hospital by ambulance on either 28 March or 29 March 2022. She remained in hospital until 14 April 2022[23] where she was treated by way of a “percutaneous drainage of abscess.”[24] Ms Secombe was again discharged from hospital on the basis of medical advice which suggested that the abscess was shrinking, such that she could continue treatment from home by way of an antibiotic regime. Ms Secombe gave evidence that this process was again adopted due to hospital bed shortages.

  1. From 14 April to 21 April 2022, Ms Secombe remained bedridden at home. She continued taking antibiotics and painkillers and was unable to go about any of her usual functions.

  1. Ms Secombe was readmitted to hospital on 21 April 2022,[25] being transported in an ambulance. On 24 April 2022, Ms Secombe underwent an open Hartmann’s operation,[26] which involved removing part of her bowel.

  1. Ms Secombe’s surgical wound subsequently became infected. On 30 April 2022, a vacuum assisted wound closure dressing (VAC) was applied to assist the healing process and remained on Ms Secombe for over two months.[27] Ms Secombe described the VAC as a sealed padding which covered the wound and was “hooked up to a VACs machine” via a tube which provided a drainage function.

  1. During the period between 11 May and 1 July 2022, Ms Secombe returned home and continued her recovery through a program called “Hospital in the Home.” Ms Secombe remained a hospital inpatient but received treatment, provided by daily in-home nursing services, from her residence. The VAC dressing was changed twice weekly, and each Friday Ms Secombe attended the hospital to consult with her surgeon. Ms Secombe described her health during this period as “not good.” She was unable to stand for long periods and was on a suite of medication to alleviate her pain. During this period, Ms Secombe occupied herself by sleeping and watching television.

  1. On 1 July 2022, Ms Secombe was formally discharged from hospital and the Hospital in the Home services ceased. As part of her discharge, the VAC machine was removed, but Ms Secombe’s wound remained, in her words, “open.” In the period that followed to 22 July 2022, community nursing attended Ms Secombe’s home three times a week to care for her wound. Ms Secombe said that she was more mobile during this period but could only sit and lie and spent most her time watching television. Ms Secombe gave evidence that it was at around this time that her husband was taught to change the dressing on the wound. The “final wound care” ceased on 22 July 2022.[28]

  1. In the third week of July 2022, Ms Secombe and her husband took a two-week holiday to Merimbula. She travelled by car from Geelong, taking approximately eight hours in total each way, with stopovers for unknown periods of time during the drive. Ms Secombe’s husband drove the entire way. Ms Secombe said that she took the two weeks to relax in an apartment overlooking a river.

  1. I consider that Ms Secombe has provided a credible explanation for part of the delay.

  1. The hospital record prepared by Dr Watson confirms Ms Secombe’s account concerning the first two periods in which she was hospitalised, and the date of the surgery. Further, before the Commission is a hospital discharge sheet explaining in more depth the third hospitalisation, the surgery, the medications prescribed and other medical matters. Ms Secombe provided a coherent account of her surgery, the matters leading up to it and the circumstances of her recovery. On the basis of this evidence, I accept that Ms Secombe was hospitalised for 91 or 92 days[29] of the 155 days between the date of dismissal and the date the unfair dismissal application was filed in the Commission.

  1. The respondent contends that no independent medical evidence has been produced by Ms Secombe to establish that she was incapacitated from March to May 2022.[30] This contention is rejected. The medical evidence before the Commission as it relates to the period between 8 March and 1 July 2022 is “compelling”[31] and I accept it. It describes a serious health concern, resultant surgery, and lengthy recovery period that followed.

  1. Further, to the extent the respondent submits that Ms Secombe’s correspondence with Mr Tebbutt on 8 March (regarding the closure meeting), 16 March (in which Mr Tebbutt sought from Ms Secombe the PIN for a company bank card),[32] and 28 March 2022 (in which Ms Secombe and Mr Tebbutt exchanged emails in relation to the mutual return of property)[33] demonstrates that Ms Secombe was capable of making her unfair dismissal application,[34] this is also rejected. The short email and text message sent by Ms Secombe on 16 March and 28 March 2022 were directly responsive to queries sent by the respondent to Ms Secombe and do not demonstrate that Ms Secombe was otherwise capable of filing an unfair dismissal application in that period. Similarly, the closure meeting email from Ms Secombe to the applicant on 8 March 2022 simply advises the respondent of her hospitalisation and seeks to keep open the invitation to further discuss her dismissal. Having regard to all of the circumstances pertaining to Ms Secombe’s health at that time, which is supported by medical evidence, I do not accept that Ms Secombe was capable of filing an unfair dismissal application during that period on account of having corresponded with the respondent in the manner described.

  1. I am therefore satisfied that Ms Secombe has established a credible explanation for the delay from the first day of the delay on 26 March 2022 to 1 July 2022. This includes the periods of time between her periods of hospitalisation.

  1. However, I do not consider that Ms Secombe has established a credible or reasonable explanation for the delay between around 1 July and 6 August 2022.

  1. On 1 July 2022, Ms Secombe was formally discharged from hospital and the Hospital in the Home services ceased. While I accept that Ms Secombe was still recovering from her surgery after 1 July 2022, there is no medical evidence that supports a conclusion that she was not capable of lodging an application during this period. I accept Ms Secombe’s evidence that the VAC machine was removed on 1 July 2022. She was attended to by community nursing three times a week for approximately three weeks, and her wound received attention. Her husband was taught to change the dressings on her wound and the wound no longer required care after 22 July 2022.[35] However, in the absence of evidence supporting Ms Secombe’s position, I do not accept that Ms Secombe was unable, during the period between around 1 July and 22 July 2022 to file her unfair dismissal application.

  1. In or around the third week of July 2022, Ms Secombe went on an eight-hour drive to from Geelong to Merimbula to commence a two-week holiday.

  1. Ms Secombe also submitted that her mental state prevented her from filing the unfair dismissal application during the period between 1 July and 6 August 2022. However, there is no medical evidence in support of Ms Secombe’s assertions with respect to her mental health during this period. Nor do I accept that any inference is available which supports a finding that the state of Ms Secombe’s mental health establishes a credible explanation for this period of the delay.

  1. During cross examination, Ms Secombe was asked at what point her mental state improved such that she felt she could prepare her unfair dismissal application. Ms Secombe’s evidence is that it she felt sufficiently rested such that she could follow up on her dismissal during the holiday. When asked whether she could have filed the application earlier, during her holiday, Ms Secombe answered “I just needed the time to decide that it was wrong.” I do not accept that taking the time to decide the dismissal was wrong is consistent with Ms Secombe’s assertion that her mental state provides a credible reason for the delay.

  1. I am therefore not able to accept that Ms Secombe’s mental state establishes a credible reason for the delay in the period between 1 July and 6 August 2022. Further, having recovered significantly from the surgery over a three-month period, Ms Secombe decided to take a two-week holiday. It is apparent that Ms Secombe’s health had significantly improved such that Ms Secombe’s contention that she was unable to file her unfair dismissal application during this period is not credible.

  1. It follows that I am not satisfied Ms Secombe has established a credible explanation for the delay for the period between around 1 July and 6 August 2022. I regard this delay as substantial.

  1. In summary, I find that:

(a)   Ms Secombe has established, to my satisfaction, a credible explanation for the delay from 26 March 2022 to around 1 July 2022; and

(b)   Ms Secombe has not established, to my satisfaction, a credible explanation for the delay from around 1 July to 6 August 2022.

  1. Having concluded that Ms Secombe has failed to establish a credible explanation for around five weeks of the delay, [36] I consider that this factor weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

  1. Ms Secombe was notified by the respondent that her employment was going to be terminated in a meeting with Mr Tebbutt, Mr Partridge and Ms Secombe on 4 March 2022. The termination letter was sent by email to Ms Secombe later that day.[37]

  1. There is no dispute that Ms Secombe became aware of the dismissal the day it took effect.[38] Notwithstanding this, Ms Secombe did not have the benefit of a full 21 days to file her unfair dismissal application as she was hospitalised from 8 March to 17 March 2022 (within the 21-day statutory timeframe). I therefore regard this as a neutral consideration.

Action taken by the person to dispute the dismissal: s 394(3)(c)      

  1. Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[39]

  1. After the dismissal, Mr Tebbutt appears to have offered to Ms Secombe the opportunity to have a “closure meeting” to discuss the reasons for the dismissal in more detail.[40] This meeting had not occurred on account of Ms Secombe’s hospitalisation. A short email exchange between Ms Secombe and Mr Tebbutt on 8 March 2022 is demonstrative of Ms Secombe’s desire for the meeting to proceed:[41]

“I need closure so would like a meeting to know what I did as for the last three days have given nothing but blood sweat and tears to that centre. I feel you have stolen all my hard work and effort and now things are moving smoothly you take the kudos

I am currently in hospital and will let you know later day if I am home to be able to take a call tomorrow”

  1. On 16 March 2022, Ms Secombe sent a further email to Mr Tebbutt in an email chain titled “Michelle Secombe Closure meeting”:[42]

“A quick up date

I am still in hospital and will be until the end of the week”

  1. The only other communications in evidence between the parties were in respect of matters unrelated to Ms Secombe’s dismissal. As noted at [30] of this decision, on 16 March 2022, Mr Tebbutt sought from Ms Secombe the PIN for a company bank card. On 28 March 2022, Ms Secombe and Mr Tebbutt exchanged emails in relation to the mutual return of property.

  1. As a result of Ms Secombe’s health concerns, the closure meeting did not occur. There is no evidence, and nor was it contended, that the purpose of the closure meeting was to challenge the dismissal. The high-water mark of this evidence is that Ms Secombe sought to take up Mr Tebbutt’s invitation to confer further about the dismissal in an attempt to obtain closure. This falls short of action taken by Ms Secombe to dispute the dismissal. 

  1. Ms Secombe did not otherwise take steps to dispute the dismissal prior to filing her application for an unfair dismissal remedy. As I am not satisfied that Ms Secombe took any action to dispute the dismissal, I consider that this weighs against a finding of exceptional circumstances.

Prejudice to the employer: s 394(3)(d)

  1. The respondent submits that if an extension of time were granted, it would suffer prejudice in respect of the following: (a) the costs associated with defending the application, (b) the length of time that has passed since the dismissal, (c) the respondent’s business records as they relate to Ms Secombe have become difficult to locate, and (d) Ms Secombe’s position with the respondent has been replaced.[43]

  1. While Ms Secombe does not accept that prejudice would accrue to the respondent, she submits that she was not in a position to file her application any sooner.[44]

  1. I do not accept the respondent’s submission at [49](a). The costs incurred in defending a claim in respect of which an extension of time has been granted is not a relevant prejudice. They are costs that the respondent would have incurred, had the application been made within the 21-day statutory timeframe.[45]

  1. In relation to the respondent’s contentions at [49](b) and (c), I note that approximately six months have passed since Ms Secombe’s dismissal. I accept that such a delay may bear upon the recollections of the respondent’s witnesses and its capacity to respond to the substantive merits case.[46] In this respect, a long delay has been found to give rise to a general presumption of prejudice.[47] 

  1. In relation to respondent’s contention at [49](d), the fact that the position has been filled does not give rise to prejudice should further time be allowed, as Ms Secombe is not seeking reinstatement.[48]

  1. I consider that there will be some prejudice to the respondent if an extension is granted, having regard to the passage of time since the dismissal was effected. However, having regard to the reasonably detailed evidence filed by the respondent in these extension of time proceedings, I am not persuaded that the prejudice would be significant. Accordingly, this weighs slightly against a finding of exceptional circumstances.

Merits of the application: s 394(3)(e)               

  1. For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[49] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[50]

  1. The reason given for the dismissal was that the respondent was exercising its “employers right” to terminate Ms Secombe’s employment under probation as per the terms of the employment contract.[51] It is not in dispute that Ms Secombe signed an employment contract with the respondent which contained a clause which established a six-month probationary period.[52] It is on this basis that the respondent advances its second jurisdictional objection to the application, that Ms Secombe did not meet the minimum employment period.

  1. There is limited evidence before the Commission in relation to the transfer of Ms Secombe’s employment from her former employer to the respondent as part of its acquisition of the Lara Centre, though it appears that a transfer of business under the Act may have occurred.[53] The resolution of the respondent’s minimum employment period objection would necessarily require consideration as to the circumstances concerning Ms Secombe’s transfer of employment. This would include the calculation of Ms Secombe’s period of “continuous service,” having regard to the operation of s 22(5)(a) of the Act in the context of transferring employees. It is noted that the respondent provided Ms Secombe with five weeks pay in lieu of notice upon termination, an entitlement reserved in Ms Secombe’s employment contract for employees who have more than six months continuous service with the respondent.[54]

  1. With respect to the substantive merits of Ms Secombe’s application, the respondent contends that there were reasons underpinning its decision to exercise its contractual right to dismiss Ms Secombe. Mr Partridge’s evidence refers to issues including Ms Secombe inaccurately recording the completion of a “lockdown drill,” concerns relating to Ms Secombe’s interactions with other staff, and an allegation that Ms Secombe failed to listen to instructions and embrace the respondent’s changes to the business.[55] Mr Tebbutt says that the following matters underpin the respondent’s decision to dismiss Ms Secombe:[56]

(a)   a continued failure to attend key meetings;

(b)   child occupancy and satisfaction issues;

(c)   a failure to integrate despite significant support and input by the respondent; and

(d)   a failure to meet the position description and requirements of a Centre Manager.

  1. Mr Tebbutt contends that the respondent provided Ms Secombe with significant support to assist in the transition and to improve her performance.[57]

  1. Ms Secombe submits that the respondent had no reason to terminate her employment.[58] Ms Secombe says that she should have been placed on a performance improvement plan if the respondent genuinely held the concerns it has identified. Ms Secombe contends that she was not provided with a reason for the dismissal and was never given an indication of any performance related issues in writing, and otherwise only by way of a single discussion with a director of the respondent on 21 December 2021.[59] Ms Secombe says that she participated in weekly meetings with Mr Tebbutt or Mr Partridge and her performance was not discussed. Rather, these meetings focused on utilisation, and the quarterly performance bonuses that could be received when meeting utilisation targets. Ms Secombe submits that she was always above these targets yet never received a bonus.[60] Ms Secombe says that she had a valid reason for not attending the leadership meeting said to have been missed.[61]

  1. Further, Ms Secombe contends that the respondent used her years of experience and knowledge during a difficult acquisition, following which it sought a less experienced manager to reduce its wages costs.[62] Ms Secombe submits that the Lara Centre was performing well at the time she was dismissed.[63] The budget and utilisation issues were improving.[64] Ms Secombe otherwise contests the respondent’s allegation that she was the cause of concern in relation to interaction issues between staff.

  1. The above matters are in genuine contest and are not capable of resolution at this stage.[65] I consider that much would turn on the parties’ respective evidence as to the matters discussed in the weekly meetings held with Ms Secombe. Further, the weight to be afforded to the exercise of a contractual right to dismiss Ms Secombe during a probationary period would require assessment against the whole of the circumstances of the dismissal.

  1. Accordingly, I do not consider it is possible to assess the relative strength of either party’s merits case. Noting that there is also a significant preliminary jurisdictional issue, the merits of the case is a neutral consideration in my assessment of exceptional circumstances.

Fairness as between Ms Secombe and other persons in a similar position: s 394(3)(f)

  1. Ms Secombe made submissions about the acquisition and other operational matters in relation to her employment with the respondent.[66]

  1. The respondent’s submissions addressed the challenges faced by other Centre Managers engaged by it in respect of two other educational centres recently acquired by the respondent.[67]

  1. Neither party’s submissions in respect of this factor raise considerations relevant to the inquiry under s 394(3)(f). Nor do I consider any issues of fairness in this context arise. I regard this as neutral in my consideration. 

Exceptional circumstances

  1. I note the observations of the Full Bench in Luciano Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[68] at [21]:

“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances. The longer the delay in making the application the more difficult it will generally be to get over that hurdle.”

  1. In the present case, the delay is lengthy and I am not satisfied that any of the s 394(3) considerations weigh in favour of a finding of exceptional circumstances. However, having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances either when the various circumstances are considered individually or together. 

Disposition

  1. As I am not satisfied that there are exceptional circumstances in this case, there is no basis for me to allow further time for Ms Secombe’s unfair dismissal application to be made.

  1. The respondent’s objection is upheld and Ms Secombe’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms M Secombe on her own behalf
Mr J McKenzie on behalf of the respondent

Hearing details:

2 September 2022, by Microsoft Teams


[1] Exhibit 1 (Court Book (CB)) 84-85 at [2.2]

[2] CB at 98 at [7]; 4 at 1.1

[3] CB 4 at 1.1

[4] CB 44 at [14]

[5] CB 99 at [8]-[16]

[6] CB 26 at [8]; 5 at 2.1

[7] CB 100-101 at [28]

[8] CB 98-101

[9] CB 271 at [1]

[10] CB 100 at [25]

[11] CB 80; 88; 261

[12] [2011] 203 IR 1

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[14] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[15] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[16] CB 5 at 1.6

[17] CB 4 at 1.6; 25

[18] CB 25 at [4]

[19] CB 10; 29

[20] CB 89-91

[21] CB 10; 29

[22] CB 267

[23] CB 10; 29

[24] CB 75 -76

[25] CB 10; 29

[26] Ibid

[27] CB 77

[28] CB 25 at [4]

[29] See [19]

[30] CB 95 at [18]-[19] citing Brett Mustica v Down Under Group [2022] FWC 954

[31] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285 at [22]

[32] CB 266

[33] CB 267

[34] CB 95 at [15]

[35] CB 25

[36] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [45]

[37] CB 89-91

[38] CB 24; 96 at [23]; 100 at [25]

[39] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[40] CB 89-90

[41] Ibid

[42] CB 90

[43] CB 96 at [26]-[27]

[44] CB 25 at [6]

[45] Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31]

[46] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

[47] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556

[48] CB 5 at 2.1

[49] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]

[50] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T242 at [14]

[51] CB 80, 88 and 261

[52] CB 44 at [14]

[53] Fair Work Act 2009 (Cth) s 311

[54] CB 71 (“5 weeks’ notice, 190 hours”); CB 53 at [27]

[55] CB 271-273 at [6]-[16]

[56] CB 100 at [26]

[57] CB 102 at [37]

[58] CB 5 at [2.1]; 6 at [3.1]; 7 at [3.2]

[59] CB 18 at [4]; 26 at [5]

[60] CB 18 at [2]; 25 at [2]

[61] CB 18 at [5]

[62] CB 18-19 at [11]; 26 at [7.12]

[63] CB 7 at [3.2]; 18 at [2]; 25 at [7]

[64] CB 18 at [3]

[65] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36]

[66] CB 26-27 at [8]

[67] CB 96-97 at [23]-[33]

[68] [2014] FWCFB 2288

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Cases Citing This Decision

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Cases Cited

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Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901
Long v Keolis Downer [2018] FWCFB 4109
Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287