Mr Darrell Riley v Challenger Hospitality Pty Ltd

[2018] FWC 6028

[2018] FWC 6028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Darrell Riley
v
Challenger Hospitality Pty Ltd
(C2018/3807)

COMMISSIONER HUNT BRISBANE, 23 NOVEMBER 2018

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – extension of time not granted.

[1] Mr Darrell Riley was employed by Challenger Hospitality Pty Ltd (Challenger) from 16 April 2018 until 31 May 2018, a period of approximately six weeks. Mr Riley has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment by Challenger in contravention of the general protections provisions of the Act.

[2] Mr Riley’s application was received by the Fair Work Commission (the Commission) by registered post on 12 July 2018.

[3] Section 366 of the Act states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] The expiry of the 21 day time limit for Mr Riley’s application to have been lodged within time to the Commission was 21 June 2018. Mr Riley’s application, received on 12 July 2018, was lodged 42 days after his dismissal and 21 days out of time.

[5] Mr Riley now seeks an extension of time for his application to be made to the Commission. He contends that his application was filed out of time due to having a disability, literacy issues, trouble locating Commission forms, and having to move home at around the time of the dismissal.

[6] A telephone hearing was conducted on 27 August 2018. Mr Riley appeared on his own behalf, assisted by his friend, Mr Noel Cooper. Mr Allan Mitnovetsky, General Manager appeared for Challenger.

Mr Riley’s evidence regarding his dismissal

[7] Mr Riley commenced employment with Challenger on 16 April 2018 as a Level One Kitchen Steward. He was engaged to work in the kitchens at the Sheraton Grand Mirage Resort Gold Coast (Sheraton). Challenger supplies employees, including kitchen stewards to perform work at the Sheraton. The employment was subject to a probationary period of six months, after which Mr Riley’s performance was to be reviewed.

[8] Mr Riley submitted in his Form F8 General Protections Application Involving Dismissal that on his first shift at the Sheraton he was told by employees of Challenger that he was employed as a Level Two Kitchen Steward. Upon arriving at his second shift, however, Mr Riley submits that he was informed this was incorrect and that he was in fact employed as a Level One Kitchen Steward.

[9] On 27 May 2018 he arrived to work in the kitchens at the Sheraton at 7.00am. According to Mr Riley, the kitchen was already dirty, with lots of pots and dishes needing to be cleaned prior to commencing his shift. Mr Riley said this put him behind in his work for the day and left him struggling to catch up. In particular, Mr Riley states that he was unable to properly prepare his equipment and materials for the start of his shift.

[10] Mr Riley submits that 27 May 2018 was an extremely busy day in the kitchen. Another steward rostered on to work with Mr Riley attended late for work. Mr Riley claims that on multiple occasions during his shift on 27 May 2018 he made requests for additional assistance to his supervisors and the Head Chef. According to Mr Riley these requests were denied.

[11] Mr Riley says that due to having been so busy he went on his lunch break late at 1.40pm, submitting that this was later than he would usually take his break. Mr Riley claims that he tried to look for his supervisor to inform him he was going on break but that he could not locate him.

[12] After returning from his lunch break Mr Riley claims he was told by his supervisor that it was not acceptable for him to go on breaks without informing someone. Mr Riley maintains that he attempted to do this but that he could not locate his supervisor. He states that he worked the rest of his shift without incident.

[13] Mr Riley claims he met with his chief supervisor on 31 May 2018 and was informed that his job was to be terminated due to what had transpired during his shift on 27 May 2018, saying words to the effect, “Your probation is finished.”

[14] Mr Riley claims that none of the reasons for his dismissal were ever fully explained to him by any staff member of Challenger. Mr Riley further submits that when he attempted to challenge the manager who informed him of the dismissal, he was laughed at and derided by him.

Mr Riley’s submissions regarding delay in lodging present application

[15] Mr Riley submitted that the reason for the delay in bringing his application under s.365 of the Act was due to him suffering from a disability, having to vacate his residential address on 21 June 2018 and losing his Fair Work Commission application papers.

[16] Mr Riley stated that he is currently receiving the Disability Support Pension from Centrelink. During the hearing he stated that he has literacy issues. Mr Cooper stated during the hearing that Mr Riley can read, but he cannot write.

[17] Mr Riley submitted in his Form F8 that he had to vacate his previous residential address by 21 June 2018. When I pointed out to Mr Riley that this date represented the 21^st day following the dismissal, he said that he had been very busy in the time leading up to that date. Understandably, he had to pack up his belongings, clean his residence, organise a truck and fill the truck with his belongings. He said his belongings then went into storage and he was then able to source a new residence some time thereafter.

[18] Mr Riley also submitted in his Form F8 that he was able to attain the correct application forms from the Commission but that he lost them for a period. Mr Riley submits that he lodged his application papers as soon as he reasonably could after locating his forms.

Other s.366(2) considerations

[19] Mr Riley submitted that he took immediate steps to dispute his dismissal by attaining application papers from the Commission soon after his dismissal.

[20] Mr Riley did not make specific submissions regarding whether Challenger may be exposed to prejudice other than the prejudice resulting from having to defend against his claim, were an extension of time granted.

[21] Mr Riley considers his claim to be meritorious and the conduct of Challenger to constitute significant contraventions of his workplace rights and general protections afforded to his pursuant to Part 3-1 of the Act.

[22] Mr Riley did not identify any similar circumstances in which an extension of time had been granted.

[23] During the hearing Mr Riley repeatedly stated that he had telephoned the Commission and had spoken with a gentleman. His account of the conversation is that when he spoke with the gentleman, he was told that because he did not have six months’ service, his claim would not succeed. He considered at this time that his claim was hopeless.

[24] After questioning from me, Mr Riley agreed that the telephone call he had was after he had made this present application. I informed Mr Riley that the call he had was with my Associate, and I had overheard some of the conversation. This present application had already been lodged when the phone call occurred.

[25] I informed Mr Riley that my Associate was attempting to explain to him that the general protection application does not require a minimum period of service, and only a claim for unfair dismissal would require a qualifying period of six months. My Associate was explaining the difference to Mr Riley between an unfair dismissal application and a general protections application.

Submissions of Challenger regarding Mr Riley’s dismissal

[26] In its Form F8A Employer Response and annexed submissions, Challenger alleges that it dismissed Mr Riley due to multiple complaints about his poor performance made by management at the Sheraton.

[27] Challenger submits that Mr Riley was never employed as a Level Two Steward and rejects Mr Riley’s claim that he was ever led to believe his employment was on any terms other than as a Level One Steward.

[28] Challenger submits that Ms Wendy Haigh, Administration Manager communicated to Mr Riley in a telephone call on 24 May 2018 that Challenger had received a number of complaints about his performance and behaviour from other employees of Challenger, together with the kitchen staff at the Sheraton. Ms Haigh reminded Mr Riley of his probationary period and noted that these complaints would make it difficult for Mr Riley to return to work at the Sheraton. Challenger claims that Mr Riley asked for another chance and this was agreed to by Ms Haigh.

[29] Challenger submits that on 28 May 2018 its interim chief supervisor for the Sheraton contract received feedback from the Executive Sous Chef at the Sheraton that Mr Riley had been slow and poor in his work, and had been heard yelling by a number of Sheraton customers. Further, he went on a break at a busy time without informing management. Challenger was informed that the Sheraton would not permit Mr Riley to return to work for them as they considered him a liability.

[30] Challenger submits that as Mr Riley was primarily employed to work at the Sheraton, this feedback gave them no choice but to dismiss Mr Riley during his probationary period.

[31] Challenger claims that the reasons for Mr Riley’s dismissal were fully explained to him at the time of his dismissal. Challenger rejects Mr Riley’s assertion that any employee of Challenger ever acting in a mocking or derisive manner toward him.

Submissions of Challenger regarding Mr Riley’s delay in lodging application

[32] Challenger submits that Mr Riley has not provided any valid reason constituting exceptional circumstances for his delay in lodging his application. Challenger claims that moving house and losing forms are not sufficient reasons for a 21 day delay in lodging a general protections application.

[33] Challenger contends that Mr Riley took no steps to dispute his dismissal other than arguing with his supervisor at the time of his dismissal and lodging the present application out of time.

[34] Challenger claims that it will face prejudice by having to deal with the matter out of time, arguing it has had to spend a great deal of time on this matter already due to Mr Riley’s delay in lodgement and would have to spend even more time should the extension be granted.

[35] Challenger rejects that Mr Riley’s application has established a meritorious claim for relief under the Act. Challenger contends that Mr Riley has failed to establish any of the following:

•  Which of his workplace rights were threatened;

•  How this right was threatened;

•  How Mr Riley was unduly influenced or pressured; and

•  The nature of any discrimination or victimisation suffered by him or the grounds on which he believes he was treated unfairly.

[36] Challenger submits that dismissing Mr Riley’s application for an extension of time to lodge his application under s.365 of the Act would not create unfairness as between Mr Riley and others in a similar position.

Applicable case law

[37] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist. The onus of establishing that such exceptional circumstances exist lies with Mr Riley.

[38] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.” [Endnotes not reproduced]

[39] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[40] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,² a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers³ stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:⁴

“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.” (original emphasis)

[41] A Full Bench in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 5considered thediscretion to grant an extension of time under the provision for unfair dismissal applications under s.394(3) of the Act, which is substantively similar to the extension of time for applications under s.365. The Full Bench considered:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. 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. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

[42] In Micallef v Garfield Child Care Pty Ltd, 6 Deputy President Sams considered an applicant’s submission that part of the reason for their delay in lodging a general protections claim was that the applicant was suffering from a medical condition:

“...The Commission accepts unreservedly that the applicant had experienced a serious medical emergency, which, on any objective analysis, would constitute an ‘exceptional circumstance’ for the relevant purposes of s 366(2) of the Act. However, given the surrounding circumstances, both before and after, her unexpected stay in hospital, that cannot be the end of the matter. The very next working day after her dismissal, the applicant was actively engaged with her solicitor about her workers’ compensation claim and her dismissal. She met with her Counsel on 6 May - two days before her medical emergency. Letters were sent from her solicitor to the respondent on 30 April and 2 May. In other words, the applicant was actively pursuing her claims against the respondent, yet seemingly forgot, ignored or put to one side, the very significant matter of actually filing an application in the Commission. There was no explanation why this was so.”

Consideration

The reason for the delay

[43] Mr Riley’s submissions as to the reasons for his delay in submitting the present application may be summarised as follows:

•  that Mr Riley was suffering from a disability that impacted his capacity to lodge his application before the expiry of the 21 day time limit;

•  that Mr Riley had to relocate his residential address during the 21 day period he had to lodge his application, diminishing his capacity to lodge his application within time;

•  that Mr Riley lost track of his application forms from the Commission and hence was not able to complete and lodge them before the expiry of the 21 day time limit.

[44] Having regard to the evidence before me and authorities cited above, noting particularly Deputy President Sams’ decision in Micallef v Garfield Child Care Pty Ltd, 7 I am not satisfied that Mr Riley’s submissions as to his disability, moving house and losing Commission forms provide a satisfactory explanation for the delay in the lodgement of the present application.

[45] The Commission has held on numerous occasions that individuals, if suffering from depression and anxiety, are not sufficient reasons to justify a delay in lodging an application under s.365, I note in particular the decisions in Custo v Norstar Recycling Pty Ltd, 8 Muir McMeeken v Action Industrial Catering Pty Ltd9 and Rose v BMD Constructions Pty Ltd.10 As such I am not satisfied that Mr Riley’s medical condition, for which he has provided no evidence of by way of certified medical documentation, itself qualifies as an ‘exceptional circumstance’ warranting an extension of time. Further, no evidence has been presented to establish that Mr Riley’s medical condition was exacerbated by his dismissal and thereby unduly impacting his capacity during the 21 day period he had to lodge his application.

[46] Mr Riley repeatedly stated during the hearing that he was extraordinarily busy working in the kitchen, preparing meals for sometimes over 400 people. I do not consider that his existing medical condition would render him incapable of completing a form and submitting it within time to the Commission.

[47] In regards to his literacy issues, whilst I am sympathetic to Mr Riley, I am not satisfied that his condition qualifies as an ‘exceptional circumstance’, as it is an ongoing disability and no evidence has been presented to establish that Mr Riley’s disability was unusually impacting his capacity during the 21 day period he had to lodge his application, or the further 21 days beyond.

[48] In line with the authority in Nulty, 11 I am not satisfied that Mr Riley’s distraction in having to move residential amounts to an exceptional circumstance. Such activities, while not a daily or weekly event are in no way unusual, exceptional or abnormal. I am not satisfied that packing up a residence for a single person in a residential unit, and departing on the 21^st day of the dismissal rendered Mr Riley incapable during the 21 days of finding time to complete the application.

[49] While I appreciate it did take Mr Riley some time to then move into an appropriate residence following the 21 June 2018 departure from his earlier residence, I do not consider that this reason constitutes an adequate explanation for the further 21 days that it took Mr Riley to finally make the application.

[50] I am not satisfied that losing application forms amounts to an exceptional circumstance. The Commission’s forms are readily available as Mr Riley is no doubt aware given that he was able to locate the forms within the 21 day time limit. Further, misplacing papers is a somewhat routine occurrence in daily life and hence cannot be considered an ‘exceptional circumstance’ warranting an extension of time.

[51] Finally, I am not satisfied that, taken together, Mr Riley’s reasons for the late lodgement of his application amount to exceptional circumstances sufficient to credibly explain the delay in this instance. Whilst I accept that Mr Riley’s condition and circumstances may have meant he had reduced capacity to lodge an application during the 21 day time period, and these reasons continued right up until lodgement, I am not satisfied that this amounts to ‘exceptional circumstances’ when the considerations of s.366(2) of the Act are taken into account.

[52] Taking account of all of the circumstances resulting in the delay in lodging the present application, I have determined that the multiple reasons provided for the delay do not amount to exceptional circumstances sufficient to credibly explain the delay in this instance. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.

Any action taken by the person to dispute the dismissal

[53] I accept that Mr Riley took steps to dispute the grounds on which he had been dismissed by obtaining the correct forms to complete. On his evidence he obtained the forms within the 21 day time limit. He did not, however, file the forms with the Commission within the 21 day time limit.

[54] I consider that this is a factor weighing in favour of the discretion to grant an extension of time.

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

[55] The delay between Mr Riley’s present application and his dismissal was a period of 42 days. That period of delay, considered in isolation, would not cause any undue prejudice to Challenger other than its costs, if any, following from its objection to the granting of an extension of time to Mr Riley.

[56] I consider that this is a neutral factor when considering whether to exercise the discretion to grant an extension.

The merits of the application

[57] In Brodie-Hanns v MTV Publishing Ltd, 12 Marshall J outlined the relevant principles to address when considering an extension of time and stated that the principles included:

“…The merits of the substantive application may be taken into account in determining whether to grant an extension of time”.

[58] The Full Bench in Kyvelos v Champion Socks Pty Ltd (Kyvelos) 13 considered the extent to which this criterion should be weighed in the overall decision of whether the discretion should be exercised (under then s.170CE(7) of the Workplace Relations Act 1996), and stated:

“[14] In considering whether to accept an application which has been lodged out of time…the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement…” [Endnotes not reproduced].

[59] Having considered the written and oral submissions of each party I am not satisfied that Mr Riley has made a case of significant merit.

[60] On the evidence and submissions before me, Mr Riley considers that his dismissal was unfair, but does not seem able to articulate any breach of s.344 of the Act.

[61] Mr Riley may believe his dismissal was unfair in the circumstances, however, that question is not one that the Commission considers when determining whether or not to grant relief under s.365 of the Act.

[62] I do not consider that prima facie Mr Riley has demonstrated that his case has merit and this weighs against exercising the discretion to grant an extension of time.

Subsection 366(2)(e) - Fairness as between the person and other persons in a like position

[63] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:¹⁴ 

‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

[64] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.¹⁵ Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[65] I am not satisfied that the issue of fairness as between Mr Riley and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion

[66] I have considered each of the criteria as set out in s.366(2) of the Act. While I am sympathetic to Mr Riley due to his disability and literacy issues, I am influenced by the unexceptional reasons given for his delay in lodging the application and the insufficient merit of the application.

[67] I am not satisfied that exceptional circumstances exist in this case for me to exercise my discretion to extend the time for Mr Riley to make his application.

[68] Accordingly, the application is dismissed.

[69] I propose to make my Associate available to inform Mr Riley by telephone of the decision and take him through any parts of the decision that he might not understand, in order for him to be properly informed of the decision.

COMMISSIONER

Appearances:

Mr Darrell Riley, Applicant;

Mr Noel Cooper, for the Applicant;

Mr Allan Mitnovetsky, General Manager of Challenger Hospitality Pty Ltd, for the Respondent

Hearing details:

27 August 2018, Brisbane, by telephone

Printed by authority of the Commonwealth Government Printer

<PR700856>

1 [2011] FWAFB 975.

2 [2018] FWCFB 901.

3 (2010) 197 IR 403 at [16]-[18].

4 [2018] FWCFB 901 at [38].

 5   [2016] FWCFB 349.

 6   [2013] FWC 5447.

 7   [2013] FWC 5447.

 8   [2012] FWA 8278.

 9   [2012] FWAFB 5933.

 10   [2011] FWA 673.

 11   2011] FWAFB 975 at [14] and [15].

 12 (1997) 67 IR 298, 300.

 13 Print T2421, (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

14 [2016] FWCFB 6963 at [41].

15 See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair

Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.