Mr Scott Miller v Mount Isa Mines Limited T/A Mount Isa Mines
[2017] FWC 6194
•22 DECEMBER 2017
| [2017] FWC 6194 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Miller
v
Mount Isa Mines Limited T/A Mount Isa Mines
(U2017/9320)
COMMISSIONER HUNT | BRISBANE, 22 DECEMBER 2017 |
Application for an unfair dismissal remedy.
[1] Mr Scott Miller was employed by Mount Isa Mines Limited (Mount Isa Mines) from February 2011 until his employment was terminated on 2 August 2017. Mr Miller has made a claim for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal was harsh, unjust or unreasonable.
[2] Mr Miller made his application on 28 August 2017.
[3] Section 394 of the Act states:
‘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.’
[4] For Mr Miller to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 23 August 2017. The application has been made five days out of time.
[5] Mr Miller seeks an extension of time within which to make his application. Mr Miller’s contention is that the application was filed outside of the statutory time limit due to representative error.
[6] A hearing was conducted by telephone on 8 December 2017. Leave was granted pursuant to s.596 of the Act for Mr John Merrell of Counsel to appear for Mr Miller, and Ms Samantha Betzien, Solicitor for Mount Isa Mines. The following witness statements were accepted into evidence, and some of the witnesses were cross-examined:
• Mr Scott Miller, Applicant;
• Ms Nirupama Sivakumar, Industrial Advocate; and
• Mr Gavin Lawrence, Organiser.
Evidence
The evidence of Mr Miller
[7] Immediately following the dismissal on 2 August 2017, Mr Miller went with Mr Gavin Lawrence, AWU Organiser to the AWU offices in Mt Isa. It is his evidence that he was with Mr Lawrence to ‘fill out the unfair dismissal application’.
[8] Mr Miller returned to the AWU office that afternoon to sign authorisation forms for the AWU to represent him, however Mr Lawrence did not have the forms ready at the time.
[9] On 3 August 2017 Mr Miller again attended the AWU office, where he completed the authorisation forms. Mr Lawrence entered the form onto the AWU computer, and it is at this time Mr Miller considered the application had been lodged.
[10] On 7 August 2017 Mr Miller telephoned Mr Lawrence to inquire as to the status of the application. Mr Lawrence assured him that the AWU Industrial Advocates are good at handling these types of matters, and these can take time.
[11] Mr Miller attended the AWU office on 11 August 2017 to follow up on the application. On 12 August 2017 Mr Miller drove to the Sunshine Coast for job interviews and to look for a home to reside in. He contacted Mr Lawrence by phone on 16 August 2017. Mr Lawrence assured him these applications can take time to hear anything further.
[12] Mr Miller returned home from the Sunshine Coast on 27 August 2017 after attending job interviews. On 28 August 2017 he attended the AWU office to see Mr Lawrence, however he was not available. He called him on his mobile phone, but could not reach him. He received a text message from Mr Lawrence which stated:
‘Sorry Scott.. I’m out at Cannington Negotiations.. will be back in office tomorrow in Mount Isa .. drop in if that suits .. Gavin [number]’
[13] Mr Miller replied by text, “See you then cheers”.
[14] On the afternoon of 28 August 2017, Mr Miller received a lodgement acknowledgement email from the Fair Work Commission (Commission).
[15] On 29 August 2017, Mr Miller received the following email from the Commission:
‘The Fair Work Commission (the Commission) received an unfair dismissal application from you on 28 August 2017 seeking an order for a remedy in relation to the termination of your employment by Glencore – Mount Isa Mines. Your application has been received outside of the 21 day legislated timeframe in which applications must be lodged. Before the merits of your application can be determined, a decision must be made to extend the time in which you are allowed to lodge this claim.
At this time, the Commission has made no decision about the validity or the merits of the application or whether an extension of time should be granted.’
[16] On receipt of the email Mr Miller went to the Mt Isa AWU office to see Mr Lawrence, however he was not in the office. Mr Miller later returned to the AWU office and spoke with Mr Lawrence, and asked him why the lodgement date was 28 August 2017, and not 3 August 2017 when he understood it had been lodged. Mr Lawrence stated he was not sure and would look into it.
[17] On 30 August 2017, Mr Miller attended the AWU offices again and was informed that Ms Sivakumar had experienced a heavy workload and had overlooked filing the application within the time limit.
[18] Mr Miller’s evidence is that he had contacted Mr Lawrence many times since 2 August 2017 to inquire as to the status of the application. He considers that he had done everything in his capacity to ensure the application was lodged in time. He considers that the reason the application was made late was representative error and outside of his control.
The evidence of Nirupama Sivakumar
[19] In support of Mr Miller’s extension of time application, Ms Sivakuma filed a statement. Ms Sivakumar is an Industrial Advocate at the Australian Workers Union (AWU). Ms Sivakumar stated that she commenced in the role in May 2017 and subsequently graduated from a dual bachelor’s degree in July 2017.
[20] Ms Sivakumar stated that she received Mr Miller’s materials on 2 August 2017. Due to a heavy workload she began preparing documents and the application form F2 on 18 August 2017. However, Ms Sivakumar was unable to complete the task as she needed to prepare for a conference in a separate matter at the Commission which was held later that day.
[21] Ms Sivakumar’s evidence is that she had carriage of another unfair dismissal where the applicant’s first name was also Scott, and she became confused, conflating the two applications. She therefore proceeded on the misapprehension that she was finalising Mr Miller’s application, when in fact she was only finalising the other applicant’s application and had neglected that of Mr Miller.
[22] The error was brought to her attention when Mr Lawrence enquired as to the progress of Mr Miller’s application on 28 August 2017, which prompted Ms Sivakumar to file the application on the same day.
The evidence of Gavin Lawrence
[23] Mr Lawrence is an Organiser of the AWU Queensland branch who acted as Mr Miller’s support person and union representative throughout the show cause process which led to his dismissal.
[24] Mr Lawrence’s evidence is that immediately after Mr Miller’s termination at a meeting on 2 August 2017, at which he was present with Mr Miller, they both returned to the AWU offices to fill out paperwork which authorised the AWU to act on his behalf in this matter.
[25] Mr Lawrence forwarded documents to Mr Troy McKernan, AWU Executive Officer at lunchtime on that day. He understood that the documents were then forwarded to Ms Sivakumar later that day.
[26] On 3 August 2017 Mr Lawrence entered the details of Mr Miller’s matter into the AWU’s records management system. On 6 August 2017, Mr Miller called Mr Lawrence following up on his application. On 16 August 2017, Mr Miller and Mr Lawrence spoke on the telephone where Mr Miller sought an update on the status of his application.
[27] On 28 August 2017 Mr Lawrence said he contacted Mr McKernan about the matter, having not heard any more about it, and not having been sent a notice of listing by the Commission. Ms Sivakumar then advised him that she had made an error causing the application to remain unfiled. Ms Sivakumar undertook to file the application immediately.
Submissions made by Mr Miller
[28] The AWU for Mr Miller submitted that the reason for the delay had two components: Ms Sivakumar’s inexperience and Ms Sivakumar’s error.
[29] At the time of the error, Ms Sivakumar had only been employed for three months with the AWU, and it was submitted that the role was her first full time job. The advocacy team at the AWU was reduced by one person thereby increasing the workload on the remaining industrial advocates. The submissions proceeded to set out the facts described by Ms Sivakumar in her statement, which is summarised above.
[30] It was submitted that the error was genuine and came about because of Ms Sivakumar’s level of experience and sudden increase to her workload. It was further submitted that Mr Miller relied on Ms Sivakumar to make the application within time. Mr Miller had no role in the factors that caused the delay in making the application, the AWU argued.
[31] The AWU cited similar facts in the matter Graham Jones v Holcim Australia Pty Ltd 1 (Jones) to support the argument that the applicant’s conduct was not the reason for the delay. The considerations in Jones included:
a) whether the representative could have taken other actions that would have ensured that the application was filed within time; and
b) that the applicant was wholly without blame for the delay.
[32] It was conceded that Mr Miller’s representatives could have taken other actions which would not have resulted in the error. However, it was also submitted that the error arose through circumstances that would not ordinarily occur, and the existence of the circumstances that are not regularly, routinely or normally encountered warrant an exercise of the discretion to allow an extension of time for Mr Miller to make his application.
[33] The submissions quoted a passage from the decision of Commissioner Bissett in Michael Edwards v Tiger Airways Australia Pty Ltd T/A Tigerair 2 in which the Commissioner said:
‘[80] I am satisfied that Mr Edwards had engaged representatives to provide him with the best advice available. He trusted them. Errors on their part should not be visited on Mr Edwards in circumstances where he took appropriate action within reasonable timeframes given his personal circumstances.’
[34] In that matter, the incorrect application was filed by the representative, and when the error was detected, no steps were taken by the representative to expedite the filing of the correct application form. It was found in that case that the representative error was the whole reason for the delay and amounted to exceptional circumstances. The Commissioner held that Mr Edwards did not contribute to the delay.
[35] The AWU for Mr Miller submitted that the whole of the delay can be attributable to the representative making an error, in being overworked and confused by the two similarly named files. Further, that Mr Miller had not contributed to the delay and therefore should not be prejudiced by having the error of his representative visited on him.
[36] It was submitted, relying on the evidence of Mr Lawrence and Ms Sivakumar, that Mr Miller took all reasonable steps to dispute his dismissal, and therefore Mr Miller should not be disadvantaged to the representative’s error. Mr Miller had contacted the union at least twice within the period of the 21 days following his dismissal, subsequent and in addition to issuing instructions on the same date of his dismissal.
[37] The decision of Commissioner Lee in Phan v GJK Facility Services Pty Ltd T/A GJK Facility Services[2017] FWC 60 to extend the time for making an application for an unfair dismissal remedy was also relied upon by the AWU. In that matter, the application had been filed 25 days later, wholly due to the fault of the union, where the applicant had given instructions within a week of his dismissal. The Commissioner allowed the extension because it was solely the union that had failed to act upon repeated instructions.
[38] It was submitted that those circumstances were even less favourable to an outcome allowing an extension than those of the current matter, because Mr Miller made contact with his union and attempted to mitigate his loss by attending job interviews following his dismissal.
[39] The AWU submitted there is no prejudice to the employer resulting from the extension of time being granted. The delay of five days is short and highly unlikely to result in reduced quality of evidence. It was also submitted that the respondent had significant resources to divert to this application, having engaged law firm Minter Ellison, when the respondent has an experienced in-house counsel, and that it would not be prejudiced in the way a small business might be.
[40] Although the AWU acknowledged that the Commission need not examine in detail the merits of the application, it was submitted that the application has merit on the basis that Mr Miller was denied natural justice throughout the show cause procedure, and that Mr Miller refuted outright two of the three allegations made against him.
[41] It was contended that others in a similar position to Mr Miller, where a representative was wholly responsible for the delay in filing, would also be granted an extension of time, and therefore the discretion should be exercised so as to preserve fairness between the applicant and other persons in a similar position.
[42] The AWU concluded by submitting that in light of the above circumstances and the whole of the error lying with the representative, that the discretion to extend the time for filing the application should be exercised in Mr Miller’s favour.
Submissions made by Mount Isa Mines
[43] Mount Isa Mines opposed the extension of time application made by Mr Miller.
[44] The objection was made on the basis that the circumstances set out by the AWU for Mr Miller were not exceptional, or in the alternative, even if exceptional circumstances were found, that the circumstances do not warrant the exercise of the Commission’s discretion to extend the time for filing the application.
[45] The respondent relies on general principles regarding the discretion to be considered, including this passage from the authority in Lucic v Nolan per Fitzgerald J:
‘Where specific periods are fixed, they are quite short. That carries obvious implications. However, the time limitations are not absolute… the court is given a discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained.’ 3
[46] It was further submitted that the test for exceptional circumstances is a ‘high hurdle’ 4 to surpass.
[47] In respect of the representative error made by Ms Sivakumar, it was submitted that representative error does not constitute an inviolable reason 5 amounting to ‘exceptional circumstances’. Further, Mr Miller as an AWU delegate knew or ought to have known about the statutory time limit for making an application for unfair dismissal, and cannot therefore rely on representative error.
[48] It was submitted that Mr Miller had stated he had attended the AWU offices on 2 August 2017 to fill out his application, but that Ms Sivakumar gave evidence that she commenced filling out the F2 on 18 August 2017.
[49] Mount Isa Mines submitted that there could be some doubts that Mr Miller had a genuinely held belief that the application had been lodged on 3 August 2017, because as a union delegate, he should have been aware of the difference between the internal forms used by the AWU and the Commission forms for lodging applications.
[50] In cross-examination, Mr Miller was asked questions relevant to his experience as an AWU delegate. He answered that he was a delegate for a crew, but not for the site. He stated that he had only done a starter course, and was not aware of the 21 day time limit in which to bring a claim for unfair dismissal.
[51] The gap between 17 and 27 August 2017 inclusive, in which there was no contact by Mr Miller to the AWU to follow up his application was challenged by the respondent. It was submitted that Mr Miller’s asserted attempts to seek updates about his application contradicted his claim that he believed it had already been filed. The respondent questioned why Mr Miller had not sought to obtain a copy of his filed application. It was submitted that Mr Miller did not take sufficient steps to ensure his application was filed within time.
[52] It was submitted that as Mr Miller was immediately aware of his dismissal, this should weigh against any exceptional circumstances found in deciding whether an extension should be granted.
[53] It was also submitted that Mr Miller took no action to dispute the dismissal prior to making the application and this too should weigh against the discretion being exercised.
[54] Mount Isa Mines claimed that it will suffer prejudice, and even if that were considered to be minimal, that that alone should not weigh in favour of the discretion.
[55] It was submitted that the merits of the application do not weigh in favour of the extension being granted, as it was submitted that Mr Miller had ‘poor prospects’.
[56] Mount Isa Mines stated that in respect of maintaining fairness as between Mr Miller and other persons in a similar position, that no such persons exist and therefore this consideration should carry neutral weight.
[57] Mount Isa Mines submitted that only in exceptional circumstances should the discretion to extend the time for making an application be exercised, and that in this matter no such exceptional circumstances exist. Therefore, it was submitted, the Commission should not exercise the discretion in favour of Mr Miller.
Applicable Case Law
[58] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd6 where 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]
[59] For exceptional circumstances to arise as contemplated by s.394(3) 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.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
Consideration
Subsection 394(3)(a) - The reason for the delay
[60] On the evidence before the Commission I am satisfied that the reason for the delay was representative error.
[61] I have had regard to the whole period between the date of the dismissal and the date the application was filed, and to Mr Miller’s conduct during this period. I am satisfied that the delay in bringing the application was solely attributable to the failure by Ms Sivakumar to make the application to the Commission as was expected by Mr Miller.
[62] Mr Miller made all appropriate attempts immediately following the dismissal to provide instructions to the AWU to file an application on his behalf. It is reasonable for Mr Miller to have concluded that the application was competently and promptly going to be filed by the AWU given he himself, together with Mr Lawrence acted so promptly to initiate the instructions and the paperwork through the AWU’s internal system. I accept his evidence that he was relying on Mr Lawrence and other AWU personnel to have filed the application.
[63] Mr Miller regularly made contact with Mr Lawrence to inquire how his application was preceding. I am satisfied that Mr Miller considered that the application had been made to the Commission, and he was inquiring as to the next steps. I do not accept that Mr Miller’s inquiries were as to whether the application had been made or not.
[64] Having accepted that Mr Miller considered that by providing instructions to the AWU and putting his trust and confidence in the AWU to make the application, it was appropriate that Mr Miller sought to mitigate his loss of employment.
[65] Mr Miller made contact with Mr Lawrence on 16 August 2017, and while he did not make any further contact between 17 and 27 August 2017, it was not unreasonable in the circumstances. At no time between 3 August and 16 August 2017 had Mr Lawrence indicated that there was an issue with Mr Miller’s application. I accept Mr Miller’s submissions that he considered his application had been lodged.
[66] The whole of the delay was due to representative error and for the reasons above I consider Mr Martin to be blameless for the delay.
[67] This is a factor which weighs in favour of the exercise of the discretion to grant an extension.
Subsection 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
[68] Mr Miller became aware of the dismissal immediately as it occurred. Accordingly, this is a neutral factor when considering whether to exercise the discretion to grant an extension.
Subsection 394(3)(c) – any action taken by the person to dispute the dismissal
[69] Mr Miller promptly visited upon the AWU office immediately following his dismissal to provide instructions to the AWU to make the application. Mr Miller completed paperwork required by the AWU within a very short time of the dismissal. Mr Miller considered within days of the dismissal that the AWU had, on his behalf, formally disputed the dismissal.
[70] This is a factor which weighs in favour of the exercise of the discretion to grant an extension.
Subsection 394(3)(d) – prejudice to the employer
[71] The delay of five days will not cause any prejudice to the employer other than its costs, if any, relating to its objection to the extension of time application.
[72] Mount Isa Mines has not demonstrated that any other prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.
[73] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
Subsection 394(3)(e) – the merits of the application
[74] In the matter of Kornicki v Telstra-Network Technology Group7 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:8
‘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.’
[75] After considering the material filed by the parties in relation to the substantive application (the Form F2 application and the Form F3 Employer Response), it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.
Subsection 394(3)(f) – fairness as between the person and other persons in a similar position
[76] It is well established that representative error will typically weigh in favour of a finding of exceptional circumstances where an applicant is blameless in the delay, has not contributed to such error and has given clear instructions to their representative to lodge an application.9 In such cases no issue will arise with respect to fairness as between an applicant and other persons who have made applications outside of the required time in a like position.
[77] In my view, the facts in this case are consistent with other cases where an extension of time has been granted on the basis of representative error.
[78] There is, however, no other person in a similar position to Mr Miller, in that no other person was dismissed by Mount Isa Mines at or around the same time as Mr Miller, and failed to make an application within the statutory time limit.
[79] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
Conclusion
[80] I have considered each of the criteria set out in s.394(3) of the Act. I am satisfied that there are exceptional circumstances as considered in the authority in Nulty based on representative error for me to exercise my discretion to extend time.
[81] I have also had regard to the cases cited by Mr Miller at [31], [33] and [37], and consider they are appropriate cases to have regard to in the circumstances given the subject matter and the reasons for the respective applicants’ delay in each matter.
[82] I have therefore determined to exercise my discretion to extend the time for Mr Miller to lodge his application to 28 August 2017.
[83] An order to this effect will be issued with this decision. The parties should confer and provide the Commission with their preferred programming of the substantive application early in the New Year.
COMMISSIONER
1 [2010] FWA 3129.
2 [2017] FWC 4021.
3 (1982) 45 ALR 411, 416.
4 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
5 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [32].
6 [2011] FWAFB 975.
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid.
9 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 at [35].
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