Mr Mark Goomes v Coastal Cleaning Solutions Holdings Pty Ltd as the Trustee for Bazley Family Trust T/A Coastal Cleaning Solutions
[2019] FWC 7308
•25 NOVEMBER 2019
| [2019] FWC 7308 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Goomes
v
Coastal Cleaning Solutions Holdings Pty Ltd as the Trustee for Bazley Family Trust T/A Coastal Cleaning Solutions
(U2019/9326)
COMMISSIONER HUNT | BRISBANE, 25 NOVEMBER 2019 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit – applicant alleged not aware of dismissal until later date – applicant informed of dismissal directly by employer at dismissal date – oral communication of dismissal constitutes dismissal – no exceptional circumstances to exercise discretion to extend time for application – extension of time not granted.
[1] On 21 August 2019, Mr Mark Goomes made an application under s.394 of the Fair Work Act (the Act) alleging that he had been dismissed by Coastal Cleaning Solutions Holdings Pty Ltd as the Trustee for Bazley Family Trust T/A Coastal Cleaning Solutions (Coastal Cleaning Solutions) and the dismissal was harsh, unjust or unreasonable.
Background and jurisdictional objections
[2] Mr Goomes commenced working as a cleaner with Coastal Cleaning Solutions on 9 June 2010. It is agreed between the parties that the last day of work was 10 April 2019, but it is in dispute as to whether Mr Goomes was informed of a dismissal on 10 April 2019.
[3] In its Form F3 – Employer Response to Unfair Dismissal Application, Coastal Cleaning Solutions raised two jurisdictional objections in relation to Mr Goomes’ application:
(a) The application was made out of time pursuant to s.366 of the Act given that Coastal Cleaning maintained that the dismissal occurred on 10 April 2019, and that the application was not filed until 21 August 2019, some 112 days beyond the 21 day time limit; and
(b) The applicant was not an employee employed by Coastal Cleaning Solutions, as he was an independent contractor.
[4] Directions were issued to both parties to file material and submissions relevant to the jurisdictional objection that the application was out of time, but not relevant to whether Mr Goomes was an employee of the respondent.
Determinative Conference
[5] This matter was listed for hearing before me on 17 October 2019. Mr Goomes appeared on his own behalf and gave evidence. Ms Annalise Thompson of O’Reilly Work Law was granted leave to appear for the respondent pursuant to s.596(2)(a) of the Act. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.
[6] Mr Christopher Bazley, Director gave evidence, together with Mrs Julie Bazley, Manager.
The Legislative Framework
[7] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[8] Section 386 of the Act deals with the meaning of dismissed, providing:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her respondent has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
[9] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Summary of evidence
[10] The respondent operates a cleaning service in south-east Queensland. Its primary business functions involves cleaning upholstery, mattresses, curtains and carpets and repairing water damage for hotels and resorts on the Gold Coast and in Brisbane.
[11] The respondent stated that Mr Goomes commenced as an independent contractor on or around 9 June 2010 to supply cleaning services pursuant to an Agreement for Services
(the Agreement) dated 3 December 2010. The Agreement nominates Mr Goomes as “The Sub-Contractor”.
[12] The respondent provided Mr Goomes with a carpet cleaning machine, uniforms and paid for his insurance.
[13] The respondent’s evidence is that prior to 9 April 2019, Mr Goomes had tampered with the carpet cleaning machine that had been provided to him. The respondent contended that the modifications created a significant risk to the health and safety of Mr Goomes and to others.
Meeting of 10 April 2019
[14] Both parties agree that a conversation took place on 10 April 2019 to discuss the alleged modified carpet cleaning machine and use of incorrect cleaning chemicals.
[15] Mr Bazley stated that at 7:30am on 10 April 2019 he called Mr Goomes to a meeting with Mrs Bazley and Mr Aaron Guyton, Senior Subcontractor in attendance. Mr Bazley explained the serious safety concerns, which resulted in Mr Goomes apologising. Mr Goomes said words to the effect, “I cannot excuse such a blatant disregard for safety. I have to let you go. Your days of cleaning carpets for CCS are over. I have no further jobs for you.”
[16] It is Mr Bazley’s evidence that Mr Goomes apologised for his actions. He was asked to prepare his final invoice, and he handed over his work credit card, work phone, and he provided his last invoice to Mrs Bazley.
[17] Mr Goomes left the meeting, parked the respondent’s van, returned the keys to the respondent’s van and then left the premises in his own car.
[18] The respondent paid to Mr Goomes the final invoice and no further work was ever performed by Mr Goomes.
[19] It is Mrs Bazley’s evidence that following the meeting she prepared the following file note:
“10/04/19 – 7:31am
In attendance:
Chris Bazley
Julie Bazley
Aaron Guyton
Mark Goomes
Yesterday the 09/04/19 when Marks van was at the auto electrician having the immobiliser disconnected, his carpet cleaning machine was brought into the workshop and the attached photo’s of what was found.
Mark has been spoked to so many times over the years about the same occurrences and it continues, but what was found with the wiring of his machine was so horrifying. Mark advised that he had replaced the motor himself and that he had cut the wires. Chris told Mark that as Mark knew there is 240v running through that machine that is encased by metal and thank god he or nobody was hurt or killed.
Mark admitted to putting straight pre-spray in his machine which he knows is not how pre-spray is used and has been caught out many times doing this. This was straight pre-spray as when it was tipped over it was purple which is the colour of the pre-spray. This compromises the standard of the carpet clean and also the internal runnings of the machine.
We cannot excuse such blatant disregard for safety and Mark understood this. He apologised to us and I knew he understood the seriousness of his actions.
Chris advised Mark that we have no further jobs for him. Mark understood; he provided his invoice to us, handed in his credit card and work phone.
Mark and I talked when he handed me his invoice and I said how sad I was that this had happened. He apologised to myself and Chris that he had put us in this position. He said that he had changed the motor some time ago and as time went on he didn’t want to tell us. I said to Marl, but you put yourself and everyone else in such lethal danger. He understood and left the property.
Julie Bazley [sic]”
[20] Mr Goomes’ evidence is that Mr Bazley said to him words to the effect “We’re going to have to let you go because of the wiring.” His evidence is that he didn’t have time to consider Mr Bazley’s statement in detail, and he responded, “Fair enough.”
[21] Mr Goomes agrees that he handed over the respondent’s credit card and phone, and he drove home following the conversation.
[22] He contended that he considered that he was an employee of nine years, and he expected to receive a written warning about any employment issues.
[23] On or around 1 May 2019, Mr Goomes travelled to New Zealand to care for his ailing mother. He returned to Australia on or around 18 May 2019.
Request for letter - end of contract
[24] On 12 August 2019, Mr Goomes contacted a lawyer regarding making a claim for unfair dismissal. On 15 August 2019 the following emails were exchanged between Mr Goomes and Mrs Bazley:
(a) 15 August 2019 – Mr Goomes to Mrs Bazley:
“Hi Julie
Hi could you please email me a letter of end of contract as I was at an interview and explained I was contracted to you guys and they asked to see my letter of termination of contract. When I said I had not received one I was told effectively I was still contracted until I had the termination in writing. I had a quick look at the contract and I was meant to have had this issued 3 days after the fact. I would have asked earlier but I’ve been dealing with my mum who’s been real sick for a few months and I’m going for a similar interview again now.
Cheers Mark”
(b) 16 August 2019 – Mrs Bazley to Mr Goomes:
“Good morning Markos,
I am truly sorry to hear about your mum; I hope that she is getting better.
We are doing ok, just the usual!
Good luck with your interview! I did send it via snail mail…?? I’ve attached a copy of it and the signed one above. Let me know if you need anything else.
Wish you the best of luck and Hi to Ingy!
Jules”
(c) With a letter attached on letterhead as follows:
“10/04/19
Dear Mark,
This is to advise of the termination of the “Agreement for Services” dated the 01st Day of July 2012 between yourself and Coastal Cleaning Solutions Holdings Pty Ltd.
Due to the following not being adhered to:
3.1 Standard of Contract Services
4.2 Equipment and materials
7.1 Occupational Health and Safety
Yours sincerely
Christopher Bazley
Director”
(d) 16 August 2019 – Mr Goomes to Mrs Bazley:
“And no written warnings or days to rectify problems as in contract.”
(e) 16 August 2019 – Mrs Bazley to Mr Goomes:
“I don’t understand; what are you wanting?
Do you want a letter stating the date of your termination only for your new employer?”
[25] During determinative conference, I sought clarification from Mrs Bazley regarding the term ‘snail mail’ used in her email. Mrs Bazley stated ‘snail mail’ was the ordinary postal system. This became an issue of fact; whether Mrs Bazley had sent the attached letter via ordinary post in April 2019. Mrs Bazley stated that she did not in fact send the letter dated 10 April 2019 via post, and that the letter attached in the email had been prepared in August 2019 and had retrospectively been signed and dated by Mr Bazley.
[26] Mr Goomes’ evidence is that he was unaware he was unemployed until he received the letter on 16 August 2019, as he had not received written notice in accordance with clause 14.1 of the Agreement. Mr Goomes stated that from the date of receiving the letter, he proceeded to bring an unfair dismissal claim.
What was the date of dismissal?
[27] Mr Goomes contends the date of the dismissal was 16 August 2019. On this date, he was issued with written notice advising him that he had been dismissed. Accordingly, he submits that his application has been made within time.
[28] The respondent contends that the date of the dismissal was 10 April 2019, as per the meeting held with Mr Bazley, Mrs Bazley and Mr Guyton. If the Commission were to find the date of the dismissal to be 10 April 2019, the application has been made 112 days late.
[29] I took the parties through the considerations the Commission must have if an application has been made out of time. The following evidence and submissions were given.
Section 394(3)(a) - The reason for the delay
[30] Mr Goomes stated that if the Commission considered that he had been terminated on 10 April 2019, the delay in lodging his application arose because of the illness of his mother in New Zealand, who had suffered cardiac arrest and was admitted to hospital on 26 April 2019. He left Australia on 1 May 2019 and returned on or around 18 May 2019. In Mr Goomes’ evidence, he submits that he remained stressed and anxious regarding the ongoing concerns impacting on his mother’s health.
[31] Throughout June and July 2019 he was assisting from Australia with movement of his mother from one hospital to another, including a change of doctor. He stated that he mostly stayed at home, and he did not work.
[32] Mr Goomes submitted that it was not until he consulted with his lawyer on 12 August 2019 that he gave consideration to making an application under s.394 of the Act. In questioning from me, he stated that between his return to Australia around 18 May 2019 to 12 August 2019, he had not been working nor receiving an income.
Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[33] In his evidence, Mr Goomes stated that he first became aware termination when he was provided written notice of his termination on 16 August 2019. He stated that he was of the understanding that dismissal took effect upon receipt of written notice, as provided in clause 14.1 of the Agreement.
[34] I had the following discussion with Mr Goomes during the determinative conference:
Commissioner: | You knew verbally that you had been dismissed on 10 April, didn’t you? |
Mr Goomes: | Yes. Yep. Looking at it now like you say, but not having it in writing was no confirmation. And the letter said in writing within 3 days. |
[35] Where Mr Goomes gave evidence above with respect to the “letter” requiring three days’ notice, I understand that he is referring to the Services Agreement which requires a notice of termination to be provided within three days of termination.
Section 394(3)(c) - Any action taken by the person to dispute the dismissal
[36] The respondent submitted that Mr Goomes did not take any further action until his communication of 15 August 2019. During the determinative conference, Mr Goomes conceded that there was no action taken by him from 10 April 2019 to 15 August 2019 to dispute the dismissal.
Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[37] Mr Goomes acknowledged that the delay could cause prejudice to the employer. He submitted that he proceeded with an application under s.394 after receiving advice from a lawyer on 12 August 2019.
[38] The respondent submitted that there would be prejudice to it as it is a small business.
Section 394(3)(e) - The merits of the application
[39] Mr Goomes submitted that his application is not without merit. Ms Thompson submitted that there was no merit to the application as Mr Goomes was a contractor, not an employee, and that the modifications to the cleaning machine made by Mr Goomes and the chemical used in the machine were serious safety breaches.
Section 394(3)(f) - Fairness as between the person and other persons in a similar position
[40] The parties agreed that there is no person in a similar position to Mr Goomes.
Applicable Case Law
[41] 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]
[42] 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)
Consideration
When did Mr Goomes’ dismissal take effect?
[43] Ordinarily a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.5 A dismissal can be communicated orally.6 Where payment in lieu of notice is made the dismissal usually takes effect immediately.7
[44] Having regard to the evidence before the Commission as to what was said on 10 April 2019, the actions taken by Mr Goomes in handing in all respondent property and driving home in his own vehicle, I have no hesitation in finding that Mr Goomes was informed of a dismissal of the relationship on 10 April 2019. Mr Bazley’s statement to Mr Goomes was clear and unequivocal.
[45] I accept Mrs Bazley’s notes as contemporaneous, and they demonstrate that Mr Goomes was aware of the termination of the relationship. This is reinforced by Mr Goomes’ email to Mrs Bazley of 15 August 2019 where he stated, “I would have asked earlier but I’ve been dealing with my mum…..” Clearly, Mr Goomes knew that he had been dismissed on 10 April 2019 and I so find.
Section 394(3)(a) - The reason for the delay
[46] The reason for delay asserted by Mr Goomes is primarily that he did not become aware of the dismissal until 15 August 2019. I have, respectfully, found against Mr Goomes on this point.
[47] I accept that not long after the dismissal Mr Goomes was concerned with his ailing mother’s health, and he was required to travel to New Zealand to assist with her hospital care. Upon his return, however, while he was still providing some remote assistance, he did not take any steps until mid-August 2019 to make relevant inquiries and ultimately bring the application. His evidence that he was mostly at home does not adequately explain the reason for the delay. There is no evidence before the Commission that he was incapacitated, and it is clear that he was not given his efforts to have his mother move hospitals in New Zealand.
[48] In line with the authority in Nulty, 8 I am not satisfied that Mr Goomes has demonstrated exceptional circumstances for the period of the delay. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.
Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[49] I have earlier found that Mr Goomes first became aware of the dismissal on 10 April 2019 and I do not accept that he first became aware of the dismissal on 15 August 2019. This is a neutral consideration.
Section 394(3)(c) - Any action taken by the person to dispute the dismissal
[50] Any action taken by an employee to consent to the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 9
[51] Mr Goomes did not take any action to dispute the dismissal until his email to Mrs Bazley on 15 August 2019. His email to Mrs Bazley on 16 August 2019 expressed his disappointment at not having been providing with relevant warnings. He then filed his application for unfair dismissal six days later.
[52] I accept that Mr Goomes took some action in mid-August 2019 to contest his dismissal. This weighs in favour of exercising the discretion to grant an extension of time.
Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[53] Mr Goomes accepted that there might be some prejudice to the respondent caused by the delay, and it was submitted as much by the respondent. I accept that the respondent is a small business, however the knowledge of the matters that would need to be determined by the Commission if an extension of time was granted is within Mr and Mrs Bazley’s control, without necessarily relying on other witnesses. Weighing up all of the matters for consideration on this issue, I find this is a neutral consideration.
Section 394(3)(e) - The merits of the application
[54] In the matter of Kornicki v Telstra-Network Technology Group 10 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:11
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[55] The respondent is a small business, and if an extension of time was granted, and if the Commission determined that an employment relationship existed, it would be necessary to determine if the dismissal was made pursuant to the Small Business Fair Dismissal Code. On the information presently before the Commission, I consider that it would be very difficult for Mr Goomes to defeat the jurisdictional argument of the respondent on this issue given he was summarily dismissed on what is put by the respondent as a significant safety issue. On the information currently before the Commission I do not accept that Mr Goomes has established that the substantive application is not without merit.
[56] The merits of the application weigh against the exercise of the discretion to grant an extension of time.
Section 394(3)(f) - Fairness as between the person and other persons in a similar position
[57] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd 12:
“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.”
[58] 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. Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
[59] I am not satisfied that the issue of fairness as between Mr Goomes 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
[60] I have considered each of the criteria as set out in s.394(3) of the Act. I am influenced by the unexceptional reasons given for his delay in lodging the application and the lack of merit of the application.
[61] I am not satisfied that exceptional circumstances exist in this case for me to exercise my discretion to extend the time for Mr Goomes to make his application.
[62] Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr M Goomes, for the Applicant
Ms A Thompson, O’Reilly Work Law, for the Respondent.
Determinative conference details:
Brisbane
17 October
2019.
Final written submissions:
Submissions of the applicant in reply, 3 October 2019
Respondent’s submissions, 27 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR713610>
1 [2011] FWAFB 975.
2 [2018] FWCFB 901.
3 (2010) 197 IR 403 at [16]-[18].
4 [2018] FWCFB 901 at [38].
5 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains [2016] FWCFB 5500.
6 Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
7 Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].
8 [2011] FWAFB 975 at [14] and [15].
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
10 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
11 Ibid.
12 [2016] FWCFB 6963 at [41].
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