Monika Hakkinen v The Lost Dogs' Home

[2018] FWC 4774

[2018] FWC 4774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Monika Hakkinen
v
The Lost Dogs’ Home
(U2018/5206)

COMMISSIONER WILSON MELBOURNE, 15 AUGUST 2018

Application for an unfair dismissal remedy.

[1] This matter concerns an application made by Ms Monika Hakkinen alleging unfair dismissal against her former employer, The Lost Dogs’ Home. Ms Hakkinen’s dismissal took effect on Friday, 6 April 2018 and her unfair dismissal application was received in the Fair Work Commission on Friday, 18 May 2018.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Ms Hakkinen’s application was made outside of the statutory time limit, with it having been made three days after the expiry of the 21 day time period allowed for by the Act.

[3] The Lost Dogs’ Home object to the Commission granting an extension of time for the making of Ms Hakkinen’s application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter as well as oral evidence of Ms Hakkinen, Russell Degnan, her partner and Alison King, a former housemate of Ms Hakkinen at the hearing. In the hearing I conducted for this matter, Ms Hakkinen appeared on her own behalf and The Lost Dogs’ Home was represented by Kasia Lopez, its Human Resource Manager and Alisa Fisher, Shelter Manager.

BACKGROUND

[6] Ms Hakkinen was employed by The Lost Dogs’ Home in October 2016 as a casual animal ambulance driver and continued in that employment until she was dismissed on 6 April 2018.

[7] Ms Hakkinen learned of her dismissal when she received an email from the Lost Dogs’ Home North Melbourne Shelter Manager, Alisa Fisher, shortly after 3:00 PM on 6 April 2018. Until she received the letter she had not been aware that her employment was in any difficulty. The letter reads in full as follows:

“Dear Monika

I am writing to advise you of a formal complaint we have received today from C.A.R.E following an incident involving yourself on Saturday 24 March 2018. C.A.R.E staff have notified us that you dropped a kitten off to their reception at approximately 4.00pm and when completing the admission form documented that the finder was St Vincent De Paul, despite the fact that you were in your Lost Dogs Home uniform and arrived in the Lost Dogs Home ambulance. You identified to the staff there that you were aware that you had breached the contractual agreement we have in place with Yarra council which states we are NOT to collect any kittens on the weekend and should definitely NOT take them to C.A.R.E for admission. When questioned by the nurse on duty as to why you were breaching this protocol, you said that LDH would not accept the kitten and you shouldn’t have collected it. You then stated that you will get in a lot of trouble and didn’t want to lose your job.

This complaint is not only a serious breach of our protocols and of our contractual agreement with Yarra council, it has also damaged the ongoing trust we have in our working relationship. Given this serious breach and breakdown of trust, I am advising you that we will no longer be offering you any casual shifts as an ambulance driver in the future. Please organise to return your keys and uniforms to the office as soon as possible. Once we are in receipt of these, we will arrange for any final payments due to be paid into your nominated bank account.

Yours sincerely”

[8] Ms Hakkinen says about the incident that led to her dismissal that the incident took place at time when she was not rostered for duty. A kitten was rescued by another person, Paul, and Ms Hakkinen took the animal to the shelter on behalf of Paul, as a citizen, rather than as an employee of The Lost Dogs’ Home. She had been hoping to foster the kitten, however, unfortunately the kitten was subsequently euthanised.

[9] There had been no steps taken by The Lost Dogs’ Home to discuss the incident in question before it communicated Ms Hakkinen’s dismissal to her. The Lost Dogs’ Home puts forward that since Ms Hakkinen was employed as a casual employee it did not have to follow its internal disciplinary procedure in relation to the allegations; as a casual employee, her services could be terminated without notice. The Lost Dogs’ Home does not dispute either that it had not contacted Ms Hakkinen about the allegations before dismissing her, or that the dismissal was communicated to her by email on a day she was not rostered to work.

[10] Ms Hakkinen suspects that she was not dismissed for the reason set out in the dismissal letter, but instead for making workplace complaints regarding unsafe working conditions, faulty equipment and compensation, on her own behalf and on behalf of other ambulance drivers, as well as for being involved as a bargaining representative in current enterprise agreement, on behalf of other ambulance drivers whose interests are apparently different from other employees of The Lost Dogs’ Home.

[11] Ms Hakkinen did not make an unfair dismissal application until six weeks after her dismissal on 18 May 2018, a full three weeks after the time period allowed by the Act for making an application. She relies upon a number of reasons as to why the application is made out of time and in particular:

•  She is suffering from mental illness which at times can be debilitating and prevent her from attending to matters such as this;

•  That in combination with her mental illness there were several trigger events at or around the same time as her dismissal which further exacerbated her inability to file the application. These included being advised that her elderly grandmother was near death, and who subsequently passed away not long thereafter, as well as her partners grandmother also becoming ill during the same period and subsequently passing away. In addition Ms Hakkinen found the process of making the application to be distressing, bringing back memories of allegedly poor treatment she received while employed by The Lost Dogs’ Home; and

•  At around the same time as the dismissal and the period in which she needed to consider making an unfair dismissal application, Ms Hakkinen was subject to significant financial stress and other time-consuming commitments which caused her difficulty in responding to the application.

[12] Ms Hakkinen does not rely upon any particular event or events as being the cause of the delay, but instead submits that the combination of these factors led to her being unable to make and complete her application until 18 May.

[13] Ms Hakkinen’s evidence is that she has suffered from acute anxiety and other mental illnesses for some time, including a diagnoses of bipolar and post-traumatic stress disorder. She is presently being treated for her illnesses by medical professionals. Her evidence included statements from some of those professionals of a general, historical nature, largely verifying what she had to say. Part of her evidence included that when her symptoms are triggered she knows what to expect, in the way of the progression of the symptoms and the manner in which the symptoms may be alleviated.

[14] Unfortunately on the same day that Ms Hakkinen was dismissed, she was notified by her father that her elderly grandmother was dying and had been given the sacraments of the Last Rites. Ms Hakkinen was very close to her grandmother and had been named after her; despite her advanced age of 103, the news was a great shock to her. The shock was exacerbated with the knowledge that, since her grandmother lived in the United States, and since she did not have permanent residency in Australia and permission to leave the country is needed from the authorities, Ms Hakkinen would be unlikely to be able to return to the US either in time to see her grandmother before she died, or to attend her funeral.

[15] Further, and despite expectations, Ms Hakkinen’s grandmother lived until 28 April 2018 and her funeral took place on 2 May 2018. 3 In the meantime, the grandmother of her partner, Mr Degnan, also became ill and died at around the same time as the death of her own grandmother.

[16] In addition to these matters, Ms Hakkinen experienced the added stress of arranging and participating in a 20 year anniversary screening of the film “Beetlejuice”, which incurred an unexpected loss which she would have to assist financing, and her car developed a critical and potentially expensive fault. She became apprehensive about taking the car for repair, not only for reason of cost, but also because “the close proximity of The Lost Dogs’ home to the (ideal) electrical repair shop is another barrier to fixing the vehicle”. 4

[17] The combination of these events, together with the need in making an unfair dismissal application to relay to the Fair Work Commission what she sees as her poor treatment as an employee by The Lost Dogs’ Home caused her an inability to make an unfair dismissal application within the prescribed time limits.

[18] Having been dismissed, she did not approach anyone on the subject of her application other than her partner and friends, and eventually, the Fair Work Commission. She says that she phoned the Commission between two and three weeks after her dismissal, and learned of the 21 day time limit in the course of the phone call. She knew at the time, because of her experience with managing her illness that she would not be able to make an unfair dismissal application in time which she discussed that with the person she spoke with and was told that there was a process to extend the time limits. By all accounts she was reassured by what she was told.

[19] When she made her unfair dismissal application, Ms Hakkinen started and finished it within the same day, although she had written out drafts of what would be said prior.

LEGISLATION

[20] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:

“394 Application for unfair dismissal remedy

(1) ….

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  whether the person first became aware of the dismissal after it had taken effect; and

(c)  any action taken by the person to dispute the dismissal; and

(d)  prejudice to the employer (including prejudice caused by the delay); and

(e)  the merits of the application; and

(f)  fairness as between the person and other persons in a similar position.”

CONSIDERATION

[21] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:

“[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”. 5

[22] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 6

[23] In considering whether an extension of time should be granted to Ms Hakkinen, I am required to consider all of the criteria in s.394(3) of the Act, which I now do.

1. The reason for the delay

[24] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 7 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.8 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.9 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.10

[25] The “delay” to be considered in this case is the period it took after the prescribed period for Ms Hakkinen to lodge her application. As previously referred to, that was a period of 21 days; the application should have been lodged on Friday, 27 April 2018 for it to be considered within time, when it was actually lodged on Friday, 18 May 2018. Ms Hakkinen puts forward the factors identified above as reasons why the application came to be made out of time:

•  She is suffering from mental illness which at times can be debilitating and prevent her from attending to matters such as this;

•  That in combination with her mental illness there were several trigger events at or around the same time as her dismissal which further exacerbated her inability to file the application. These included being advised that her elderly grandmother was near death, and who subsequently passed away not long thereafter, as well as her partner’s grandmother also becoming ill during the same period and subsequently passing away. In addition Ms Hakkinen found the process of making the application to be distressing, bringing back memories of allegedly poor treatment she received while employed by The Lost Dogs’ Home; and

•  At around the same time as the dismissal and the period in which she needed to consider making an unfair dismissal application, Ms Hakkinen was subject to significant financial stress and other time-consuming commitments which caused her difficulty in responding to the application.

[26] Overall I do not find these factors to be an exceptional circumstance which would lean towards the granting of an extension of time for the making of Ms Hakkinen’s application.

[27] The factors of Ms Hakkinen’s distress, both individually and collectively, are best regarded as relatively ordinary factors which do not enliven the need for exceptional circumstances. When I say “relatively ordinary factors”, that is to say they occur commonly within the population, and I do not suggest that they are factors that were either not present, or the cause of personal distress to Ms Hakkinen.

[28] The starting point for such analysis is to consider whether there has been a satisfactory explanation for the delay and if there is, whether in total the circumstances put forward by an applicant may be regarded as exceptional. In its 2018 recasting of the test required to be applied by the Commission, in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 11 the Full Bench set out the considerations which need to be given by the Commission on the matter of exceptionality:

“[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.” 12

[29] In another matter decided by the Full Bench after Stogiannidis the need is highlighted for consideration to be first given to whether there is a satisfactory explanation, with the consequential decision of the Commission to then be whether in total there are exceptional circumstances:

“[63] The Applicant has failed to provide a satisfactory explanation for a significant period of the delay. This is a factor that weighs against a finding of exceptional circumstances.” 13

[30] In the circumstances presently before the Commission I am not satisfied that there is a satisfactory explanation for the delay. To the extent that Ms Hakkinen contends that the shock of learning that her grandmother was about to pass and the grieving which then took place after she did pass away, there is no evidence before the Commission that this sad eventuality meant that Ms Hakkinen was incapacitated in some way or otherwise unable to go about attending to her day-to-day affairs. In fact Ms Hakkinen conceded that having been dismissed by The Lost Dogs’ Home she continued to go to another job and that such was beneficial for her state of mind. It is also to be noted that her grandmother’s funeral took place on 2 May 2018, which was within a week of the end of the statutory filing period. An insufficient explanation has been given by Ms Hakkinen as to either why it then took a further 16 days for the application to be made or why she could not rely upon her partner or friend to make the application to the Commission.

[31] The comment that Ms Hakkinen made about the advice she received from the Commission staff member about the making of an application and how it may be possible to seek an extension of time if she was unable to make the application within time is plausible, if likely not a little overstated about the ease with which the process would be pursued. However no satisfactory explanation is given to the Commission as to why Ms Hakkinen even at that time thought that she would need to take longer to make her application than the statutory period. While it can be presumed that her experience in managing her illness led her to believe that it was unlikely she would conclude the application in time, no explanation is given to the Commission about why she did not seek assistance with making the application prior to the expiry of the time limit, or why it took as long as it did. In actuality, it is likely that the application was made when it was because that was when Ms Hakkinen considered she was able to make the application. While I have no doubt that the Applicant suffers from mental health illnesses it needs to be said that the material before the Commission about her illness is largely of a low or anecdotal level and as such the Commission is unable to, on the basis of the material before it, to form a view that the state of her mental health was such as to satisfactorily explain the lateness of the application. Many people are unwell after being dismissed, whether for physical or mental illness reasons. Only a few are likely to be so unwell that they cannot attend to their affairs, including making or giving instructions for the making of an unfair dismissal application. Clear and cogent evidence on the subject and how the illness incapacitated an applicant would likely be needed.

[32] The Applicant also relies upon other circumstances around the time of her dismissal which triggered her level of anxiety. Those matters included the distress stemming from participation in a loss-making venture associated with the rescreening of the “Beetlejuice” film; the distress which would have been evident as result of a broken down motor vehicle; and the distress which would come from having to retell her story, in the form of an unfair dismissal application; and what she regarded as an unpleasant employment relationship with The Lost Dogs’ Home. The combination of those matters do not lead to the prospect that they are exceptional circumstances, but rather that they are largely ordinary circumstances, which even when considered in combination do not become exceptional.

[33] Accordingly, my assessment of the factors relevant to this criterion does not resolve in favour of Ms Hakkinen in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[34] On the basis of the evidence before me, I am satisfied that Ms Hakkinen first became aware of the termination of her employment on Friday, 6 April 2018, when she was provided with a letter of termination by email. This is therefore not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[35] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 14

[36] The evidence of Ms Hakkinen’s is that she confined her efforts in contesting her dismissal to the making of this application.

[37] As a result, overall, my consideration of this criterion does not resolve in Ms Hakkinen's favour.

4. Prejudice to the employer (including prejudice caused by the delay)

[38] The delay in the filing of the application is 21 days. The Respondent has not directly put forward that it would be prejudiced by allowing an extension of time for the making Ms Hakkinen’s application.

[39] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 15

[40] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted, therefore this is a neutral factor in my consideration.

5. The merits of the application

[41] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[42] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted;

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). 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 pursuant to s.170CE(8). 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. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 16

[43] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 17

[44] The merits of the application to which Ms Hakkinen refers are that she was dismissed for an incident that took place when she was not working and that she was not asked to respond to which ultimately led to her dismissal as well as that she only learnt of the circumstances surrounding the incident being an alleged breach of company policy when she read the letter of dismissal. Ms Hakkinen may well also, if given the opportunity and full hearing, seek to agitate the argument that is she was targeted for dismissal because of her activities as a representative of other ambulance drivers.

[45] As part of a consideration of the merits of Ms Hakkinen’s case, should the matter proceed to hearing a real question is likely to arise about whether it could be said that Ms Hakkinen had been dismissed either for a valid reason or with procedural fairness. Material presently before the Commission could lead to a finding that neither was the case.

[46] The Lost Dogs’ Home’s presumption that, as a casual employee, Ms Hakkinen is not covered by the unfair dismissal regime and therefore allows them capacity to dismiss her without proper investigation or opportunity to respond is likely incorrect. The evidence before the Commission would likely lead to a finding that Ms Hakkinen was a person protected from unfair dismissal, having completed the minimum employment period and, even as a casual employee, working regular and systematic hours. If such finding was made by the Commission, the question would then turn to whether there was a valid reason for her dismissal, with associated questions of whether she was afforded procedural fairness, and it would be unlikely that the Commission would resolve the matter on the basis that as a casual employee she was not entitled to such considerations.

[47] Notwithstanding the circumstances, I consider that arguments about the validity of the reason used for dismissal of Ms Hakkinen would only be resolved upon the full examination of the merits of the matter. It does not therefore become a situation where it can be said that there is “a highly meritorious claim [which] may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient”. Consideration of this criterion is therefore a neutral factor in my decision on the matter of an extension of time.

6. Fairness as between the person and other persons in a similar position

[48] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 18 In relation to considerations of fairness with unfair dismissal applicants generally, there are no factors before me that would cause a finding that dismissal of Ms Hakkinen’s application would lead to differential treatment compared with applicants generally. In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.19

[49] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Hakkinen.

[50] An Order dismissing Ms Hakkinen's application for unfair dismissal remedy is issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Ms Monika Hakkinen on her own behalf.

Ms Kasia Lopez and Ms Alisa Fisher for the Respondent.

Hearing details:

2018.

Melbourne;

10 August.

Printed by authority of the Commonwealth Government Printer

<PR609932>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Exhibit A1, Applicant’s Outline of Argument: Extension of Time, pp.9.

 4   Ibid.

 5   Nulty v Blue Star Group, 2011, 203 IR 1 [13].

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 9   Ibid, [40].

 10   Ibid, [41].

 11   [2018] FWCFB 901.

 12   Ibid.

 13   Long v Keolis Downer T/A Yarra Trams, [2018] FWCFB 4109.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 15   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 16 (2000) Print T2421 [14].

 17   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 18   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

 19   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].