Mr Simon Johansen v Architectural Roofing and Wall Cladding (Qld) Pty Ltd
[2023] FWC 2185
•30 AUGUST 2023
| [2023] FWC 2185 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Simon Johansen
v
Architectural Roofing And Wall Cladding (Qld) Pty Ltd
(C2023/1200)
| COMMISSIONER DURHAM | BRISBANE, 30 AUGUST 2023 |
Application to deal with contraventions involving dismissal – whether application made outside the prescribed 21 days - whether to extend time – application dismissed
On 5 March 2023, Mr Simon Johansen (Mr Johansen/the Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act), for the Commission to deal with a general protections dispute involving dismissal from his employment with Architectural Roofing and Wall Cladding (Qld) Pty Ltd (the Respondent/ARC/Aroca).
Mr Johansen contends that his employment was terminated, by way of constructive dismissal, on 13 February 2023. Based on these dates, the application would have been considered to have been lodged within the statutory timeframe.
The Respondent however, raised two jurisdictional objections: [1]
that Mr Johansen’s application was lodged out of time because the employment relationship came to an end on or around 13 November 2022, or in the alternative, no later than 1 February 2023; and
that Mr Johansen was not dismissed as he had voluntarily resigned his position.
Section 366(1) of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 366(2).
Given the date of termination is contested, the first matter to be determined is the date that the employment relationship came to an end. If it is determined that the application was lodged out of time, Mr Johansen will require the Commission to grant a further period of time within which to bring his application.
The question of the date the employment relationship came to an end, and, if the application was lodged out of time, whether to grant additional time to Mr Johansen to make his application was dealt with at a Determinative Conference on 5 July 2023. Both the Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence. The Respondent called one witness, Mr Peter Martin, CEO of the Respondent. In addition to the material filed by both parties, further documents were admitted during the Determinative Conference, these were:
an email chain spanning 2 December 2022 to 30 December 2022;
an email dated 24 February 2023; and
a letter from the Respondent to the Applicant dated 3 March 2023.
The entirety of the digital court book, along with the additional material admitted during the Determinative Conference mentioned above, was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Closing written submissions were finalised and filed on 26 July 2023. All the material relied upon by both the Applicant and the Respondent has been taken into consideration.
The Date the Employment Relationship Came to an End
Mr Johansen’s evidence in this regard is somewhat inconsistent. On one hand, he argues that the employment relationship came to an end on 13 February 2023, as per his letter of resignation. The letter of resignation dated 28 February 2023 was titled “Constructive Dismissal of my Employment”, and within it, he sought that his resignation be effective immediately from 13 February 2023.[2]
Mr Johansen also asserts in this same letter that the Respondent has contravened the Act by not paying him termination pay owing for the termination of his employment despite repeated demands between 29 December 2022 and 28 February 2023, and further that the Respondent is in breach of the General Protections provisions of the Act because he exercised his right to be paid a redundancy payment following communication on 2 December 2022 that his position was terminated by way of redundancy.[3]
To add to the confusion, Mr Johansen sent an email to the Respondent dated 23 January 2023 in which he stated that it was clear to him that his employment had been terminated.[4]
The Respondent maintains that the employment relationship came to an end on 31 January 2023, or alternatively that the employment relationship ceased on 2 December 2022 or 23 January 2023.[5]
The parties have put forward a range of possible dates on which the employment relationship may have come to an end. To determine the actual date, a range of factors need to be explored. The following paragraphs deal with each of them in turn.
Nature of Mr Johansen’s Employment
Mr Johansen states that he commenced employment with the Respondent on 26 June 2008 and was notified of his dismissal on 13 February 2023. Mr Johansen asserts that he has performed the role of General Manager since commencing his employment with the Respondent.
Whilst not disputing the length of Mr Johansen’s relationship with the Respondent or any of its predecessors, evidence given by Mr Martin, provides important context to the relationship.
Mr Martin’s witness statement dated 16 June 2023 indicates that Mr Johansen owned the business, ARC, up until 2019. Specifically, Mr Martin’s witness statement provided as follows:[6]
“14. Later in 2018, Mr Johansen approached Aroca, to acquire his business (ARC, formerly known as ZC Technical Pty Ltd (‘ZCT’).
15. On or around 14 June 2019, a change of ownership and commensurate sale of the shares of ZCT occurred.
16. The sale contract would pay Mr Johansen deferred consideration over a 3-year period for ZCT, but Mr Johansen in turn had to remain an employee through to 30 June 2022 to receive that consideration.
17. Following Aroca acquiring ZCT, Mr Johansen was employed by Arc in the position of “General Manager of Queensland”, being based in the “Queensland Office”. Mr Johansen’s salary was $150,000 per annum plus statutory superannuation contributions.”
The arrangements detailed above were captured in an employment agreement, which was Annexed to Mr Martin’s witness statement, marked as “A”.[7] Whilst this version of the document is unsigned and undated, during cross examination Mr Johansen confirmed that this document was his employment contract and that he was familiar with its terms.[8] Based on the evidence before me, I can only conclude that this document was agreed between the parties on or around 14 June 2019.
Further, evidence provided by the Respondent indicates that Mr Johansen was a director of the Respondent, in various forms, from 12 May 2011 to 19 July 2022, and a secretary of the Respondent from 28 April 2015 to 19 July 2022.[9] Mr Johansen has not provided any evidence or submissions to refute Mr Martin’s evidence in this regard.
Events Leading to the Ending of the Employment Relationship
Mr Johansen states that in the 12 months leading to June 2022, he had experienced “burn out” due to working excessive hours.[10] Additionally, Mr Johansen provided oral evidence that during this time, he was also looking after his mother who was experiencing health issues.[11]
This aligns with Mr Martin’s evidence that, on or about 2 March 2022, Mr Johansen expressed to him that he was feeling “burned out” and that it was his intention to step away from his position as ARC’s General Manager of Queensland and head to Denmark for 6 to 12 months to rejuvenate.[12] For these reasons I have formed the view that Mr Johansen initiated discussions with the Respondent about stepping away from the role of General Manager and taking an extended period of leave.
The parties exchanged several emails between 4 and 6 March 2022 in this regard.[13] The first of these was sent by Mr Martin on 4 March 2022, and appears to be summarising his understanding of discussions held between the parties. Mr Martin states:[14]
“I understand from our discussions, the following was agreed:
· You will leave the employment of ARC QLD to head back to Denmark for 6 to 12 months
· The last day of employment you have given is 31 July 2022
· Then on your return to Australia from Denmark you would seek to be reemployed as a QLD Sales Representative Role
· This would mean you would report to Ross Collis where you would look for Architectural jobs in the QLD market that suit our business focus
· The employment package of the QLD Sales Representative Role needs to be discussed and agreed
· On that basis we would need to immediately elevate Ross Collis to General Manager of QLD - I just need to speak to Juerg Wilk to seek agreement on that matter
· From next week we would inform Ross Collis that you are leaving in late July and offer Ross Collis the GM of QLD Role
· On appointment of Ross Collis, you would need to formally step down as GM of ARC QLD and resign as a Director of ARC QLD
· As per our initial MSTeams meeting regarding this matter with yourself, Juerg Wilk and me you (sic) indicated in order to achieve the above that you are waiving your right to the “Earn Out” under the Share Purchase Agreement
· Whilst you are abroad in Denmark it may make sense for you to continue to nurture certain leads until they are formally secured as contracts with ARC QLD, and in order to do that we would consider paying you to understand this role by engaging you on some form of contract yet to be discussed and agreed.”
Mr Johansen provided a response to this email the following day, 5 March 2022. It is clear from his response that he did not agree with Mr Martin’s summary of the discussions. Mr Johansen stated:[15]
“I need to make it very clear that I intend to full fill (sic) my obligations in regard to the acquisition and remain employed as the General Manager of ZC Technical (now ARC QLD).
As long as the contract/acquisition remains in place and look (sic) the way it currently looks, I will not be standing down as GM and I will not be agreeing to elevating Ross, or anyone else, to the position of GM.”
In the same email, Mr Johansen goes on to state:[16]
“Upon further conversations with yourself, my aim is to take extended long service leave for 6 months only (if approved) and once the acquisition has been finalised, I am happy to work actively towards the future of the business and form an active part in put (sic) the incoming GM into a position where he/she will be successful in that role, as well as the business.
I hope on my return (If my request for extended leave gets granted) to be a part of this.”
and further
“In regards to continue (sic) within the business, yes that is my desire, but I would like to hear from yourself what you would like me to do for the business.”
The email also makes several comments regarding the separate contractual dispute between the parties. These would appear to be related to the finalisation of the deferred consideration from the sale of the business in 2019. In response to the email dated 5 April 2022, that same day, Mr Martin writes as follows:[17]
“I’m totally confused. Nothing in your email makes sense.
You are stepping down as GM of QLD as per your instructions (not ours) effective 1st August, because you want to head to Denmark for an extended leave of absence. That process is now in train and cannot be undone.”
On 6 March 2022, Mr Johansen replies to this email, sensibly suggesting that to avoid any confusion, the next step should be a phone conversation.[18] Whilst no evidence was provided specifically to this point, it can be presumed that further discussions were then held between Mr Johansen and Mr Martin, culminating in correspondence being sent to Mr Johansen 10 April 2022. It must also follow that, given Mr Johansen himself requested these further discussions, to “avoid further confusion”, the contents of the correspondence that followed must have been agreed by both parties as having provided clarity of the situation as it stood. In this regard, the correspondence titled “Share Purchase Agreement – Confirmation of Adjustments” provided the following: [19]
·Mr Johansen has notified the Board of Directors of Aroca of his intention to depart the business on 1 August 2022;
·As a result of this announcement there is a requirement to transition management of ARC to a new General Manager;
·That Mr Johansen had indicated that he would like to return to the employment of ARC QLD on or around January 2023, but not as General Manager of ARC QLD;
·That at this point, there is no agreement or confirmation that a new position will be available (but that discussions are continuing); and
·That in accordance with the Share Purchase Agreement, Mr Johansen must maintain employment as General Manager until after the payment of the final tranche of deferred consideration, due to be paid on or around 30 June 2022.
The letter also confirms that:
·Mr Johansen’s employment with ARC QLD remains a condition for the vendors to receive payment of the final tranche of the deferred consideration; and
·That Mr Johansen, in turn, has agreed to waive any and all rights to payment of an Earn Out due to this change in his responsibilities and intention to leave ARC QLD’s employment as of 1 August 2022.
Mr Johansen accepted, during cross examination that the 10 April 2022 correspondence[20] was an agreed variation to the employment contract. Importantly, the correspondence invited Mr Johansen to make contact immediately to discuss any concerns about the agreement. As there is no evidence of Mr Johansen having disputed the content of the correspondence, it is reasonable that the Respondent would have presumed Mr Johansen agreed with the arrangements as outlined.
Appointment of the New General Manager
As foreshadowed in the 10 April 2022 correspondence,[21] the Respondent took steps to transition to a new General Manager. Evidence provided by both parties acknowledges a replacement General Manager was appointed, however resigned after only a short time in the role. Mr Johansen then continued in the role of General Manager. It is this point that Mr Johansen argues “changes everything” with respect to the agreement reached on 10 April 2022. Mr Johansen argues that his continuing to fulfil the role of General Manager after the departure of his replacement, up to the date of his agreed commencement of leave, constitutes a cancelling of the entire agreement, including his intention to resign following his period of leave.
The Respondent disagrees with Mr Johansen’s position on the basis that the 10 April 2022 contract variation made it clear that the business would commence the process of transitioning to a new General Manager, and that, in accordance with the Share Purchase Agreement, Mr Johansen must maintain employment as General Manager until after the payment of the final tranche of deferred consideration, due to be paid on or around 30 June 2022.
On the basis of the evidence before me, I have formed the view that Mr Johansen continuing to perform the role of General Manager up until he commenced his approved leave, did not in any way impact on the agreement between the parties. Further, it was contemplated by the agreement, which acknowledged Mr Johansen’s contractual obligations under the Share Purchase Agreement to remain in the role until that date.
Extension of Leave
As foreshadowed in the 10 April 2022 contract variation,[22] Mr Johansen sent an email to Mr Martin on 30 June 2022 formally outlining the leave he intended to take.[23] In this email, he formally requests a period of unpaid leave, up to and including 31 January 2023, that would immediately follow his long service leave which commenced 1 August 2022. The email states:
“Hi Peter and Patrick, I have sent through request for Long service leave as well as leave without pay through smartsheets to below dates:
Long Service Leave (556 hours accrued as of July 30 - and there are two PH’s in that period, Ekka day and Queens Birthday) – 1/8 – 8/11 (both days inclusive)
Unpaid leave – 9/11 – 31/1 (both days inclusive less the public holidays in that period) It’s my preference not to use my accrued annual leave and keep this to when/if I return to work on February 1st.”
There is no dispute between the parties as to the request and granting of this leave. Based on the evidence before me, I am of the view that the parties had agreed that Mr Johansen would formally cease in the role of General Manager on the 31 July 2022, but that he would serve out an extended notice period, between 1 August 2022 and 31 January 2023. This arrangement was consistent with the 10 April 2022 contract variation and allowed Mr Johansen to serve out his long service leave, then a period of unpaid leave, which allowed him to avail himself of the various public holidays that occurred during this period.[24]
Promise of Another Role
Mr Johansen asserts that there was an agreement between the parties that he would be offered another position that he would take up upon his return from overseas. Whilst this was clearly Mr Johansen’s wish, and there had been discussions about what a suitable role may look like, there is no evidence to suggest that a new position was formally offered to, or accepted by Mr Johansen.
Further, the April 10 2022 contract variation clearly notes that Mr Johansen had indicated that he would like to return to employment with the Respondent on or around January 2023, but not as General Manager.[25] Importantly, the agreement goes on to note that, “at this point, there is no agreement or confirmation that a new position will be available.”[26]
I further consider that the reference in Mr Johansen’s 30 June 2022 email regarding his leave, where he expressed his desire to keep his accrued annual leave “to when/if I return to work on February 1st,” is an acknowledgment that there was no agreement regarding a new position post 31 January.[27]
December Communications
Mr Martin wrote to Mr Johansen on 2 December 2022 regarding his ongoing employment.[28] In this email, Mr Martin references the discussions held between the parties about alternate positions that Mr Johansen may be suitable for upon his return from abroad.[29] Mr Martin refers to a “National Sales Executive” role that had been discussed as a possible option before Mr Johansen’s departure.[30] Mr Martin goes on to confirm that, after consideration, they do not see a need for this position, nor can they identify any position that would be suitable for Mr Johansen moving forward.[31] In light of that, Mr Martin sought discussions with Mr Johansen regarding the terms of release from his employment with ARC.[32]
On the basis of the evidence before me, I accept that Mr Martin’s attempts to contact Mr Johansen at this point were purely to confirm that the Respondent did not wish to proceed with offering Mr Johansen a new position once the employment relationship with respect to the General Manager position came to an end on 31 January 2023, and to give him the courtesy of providing him with this information before he made any decisions about his return to Australia.
Mr Johansen’s Response
On 7 December 2022 Mr Johansen responded to Mr Martin’s email.[33] This is the first time that he puts forward his argument that, due to him having continued to perform the role of General Manager up until 31 July 2022, he had never actually resigned, but rather had simply taken a period of leave.[34] For the reasons outlined above, I do not accept Mr Johansen’s version, rather I consider that he had agreed to step down as General Manager as of 31 July 2022, choosing to serve out an extended notice period before the employment relationship came to an end on 31 January 2023.
Mr Johansen also suggests in this email that, due to his belief that he still held the position of General Manager, and that the business no longer needed him to perform that role, there must have been an organisational restructure that had resulted in him no longer being required.[35] Consequently, he considered his position to be redundant. Again, for the reasons outlined above, I do not accept this position. I believe that the most likely scenario is that upon realising that the business would not be offering him a new role post 31 January 2023, Mr Johansen focussed his efforts on trying to negotiate a financial settlement, including pressing his view that he had been made redundant.
Direction to Stay on Unpaid Leave
Much is made by Mr Johansen of the email dated 30 December 2022, which he claims to be a direction from the Respondent to stay on unpaid leave indefinitely.[36] Considering the evidence of Mr Martin and the proper reading of the email itself, I am of the view that this email can only be construed as Mr Martin confirming that Mr Johansen should remain on unpaid leave till 31 January 2023, in line with the terms agreed in the contract variation of 10 April 2022.
Conclusion as to the Date the Employment Relationship Came to an End
Having considered all of the above, I have formed the view that the 10 April 2022 correspondence serves as confirmation that Mr Johansen voluntarily relinquished his role as General Manager and that his agreed last day of employment would be on or around January 2023, noting that the final agreed date, 31 January 2023, was proposed by Mr Johansen, in his email dated 30 June 2022.[37] I am therefore of the view that the employment relationship came to an end on 31 January 2023.
As Mr Johansen lodged his application on 5 March 2023 and the date of dismissal/end of the employment relationship was 31 January 2023, his application is 12 days out of time.
Legislative Provisions
Section 366 provides a time limit for the filing of applications under section 365:
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.
Extension of Time
Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[38]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider each of the factors outlined in section 366(2).
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[39]
Mr Johansen raised several factors to explain the delay in lodging his application:
1. No clear communication was received by Mr Johansen advising that his employment with the Respondent was terminated.
2. It only became clear to Mr Johansen on 13 February 2023 that another employee was now performing this position, did he appreciate that he has been dismissed.[40]
As explored above, I am of the view that Mr Johansen initiated discussions with the Respondent with a view to resigning from his role in or around March 2022 and then set about negotiating the terms of his departure. The 10 April 2022 contract variation clearly outlines that Mr Johansen would resign from the role on 31 July 2022.[41] Later, in June 2022, the extended notice period was agreed between the parties, with the final date of 31 January 2023 being nominated by Mr Johansen.[42] Based on the evidence before me, I do not accept Mr Johansen’s argument that no clear communication was received advising that he had been terminated.
Considering all the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Action to Dispute the Dismissal
As discussed above, there was an agreement for Mr Johansen’s employment with the Respondent to end in or around January 2023, per the 10 April 2022 correspondence,[43] which was subsequently agreed between the parties to be 31 January 2023.[44] The 10 April 2022 correspondence afforded Mr Johansen the opportunity to dispute the dismissal/resignation, however this was not disputed at the time and no issues were raised until 7 December 2022.[45]
The extensive delay, and acquiescence by Mr Johansen to step down from the role of General Manager, until later realising he would not be offered another role with the Respondent upon his return from overseas, weigh against an extension of time in this case.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration.
Merits of the Application
In addition to their objection on the basis that the application is out of time, the Respondent has also raised the additional jurisdictional objection that there was no dismissal, as the Applicant resigned his position.
Whilst not specifically dealt with in the hearing of this matter, due to the nature of the employment relationship and the circumstances that surrounded the determination of the date on which the employment relationship came to an end, much of the evidence provided necessarily went to this question.
Based on the evidence before me, I consider Mr Johansen may also face significant challenges overcoming the second jurisdictional objection and demonstrating that he was summarily dismissed. The determination of these matters would of course depend on factual findings made at the final hearing, noting it is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matters in s.366(2)(d).”[46] Consequently, I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, having come to the conclusion that the application is out of time and after considering each of the factors outlined in section 366(2), none of the factors I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.
As Mr Johansen’s application is out of time and there are no exceptional circumstances to afford additional time, it is unable to proceed.
The application is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
S. Johansen for himself
C. Mossman for the Respondent
P. Martin for the Respondent
Hearing details:
2023
Brisbane
5 July
Final written submissions:
2023
19 & 26 July
[1] P.32 of the Digital Court Book (‘DCB’) - Form F8A.
[2] P.26 of the DCB – Applicant’s Outline of Submissions – Annexure C.
[3] Ibid.
[4] P.92 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure E.
[5] P.16 of the Respondent’s Closing Submissions.
[6] P.55 of the DCB - Witness Statement of Peter Martin dated 16 June 2023.
[7] P.61 – 79 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure A.
[8] PN263-264, PN429-431.
[9] P.35 of the Digital Court Book (‘DCB’) - Form F8A.
[10] P.14 of the DCB – Applicant’s Outline of Submissions.
[11] PN639.
[12] P.56 of the DCB – Witness Statement of Peter Martin dated 16 June 2023.
[13] P.80 – 84 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure B.
[14] Ibid P.83.
[15] Ibid P.81.
[16] Ibid P.82.
[17] Ibid P.80 – 81.
[18] Ibid P.80.
[19] P.86 of the DCB Witness Statement of Peter Martin dated 16 June 2023 – Annexure C.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] P.20 of the DCB – Applicant’s Outline of Submissions – Annexure A.
[24] Ibid.
[25] P.86 of the DCB Witness Statement of Peter Martin dated 16 June 2023 – Annexure C.
[26] Ibid.
[27] P.20 of the DCB – Applicant’s Outline of Submissions – Annexure A.
[28] P.88 – 89 of the DCB Witness Statement of Peter Martin dated 16 June 2023 – Annexure D.
[29] Ibid.
[30] Ibid 88.
[31] Ibid 89.
[32] Ibid.
[33] P.90 – 91 of the DCB Witness Statement of Peter Martin dated 16 June 2023 – Annexure E.
[34] Ibid.
[35] Ibid 91.
[36] P.20 of the DCB – Applicant’s Outline of Submissions – Annexure A.
[37] Ibid.
[38] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[39] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
[40] P.15 – 16 of the DCB – Applicant’s Outline of Submissions.
[41] P.86 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure C.
[42] P.20 of the DCB – Applicant’s Outline of Submissions – Annexure A.
[43] P.86 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure C.
[44] P.20 of the DCB – Applicant’s Outline of Submissions – Annexure A.
[45] P.90 – 91 of the DCB – Witness Statement of Peter Martin dated 16 June 2023 – Annexure E.
[46] Appeal by Nulty, Cheyne Leanne - [2011] FWAFB 975 at [36].
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