Ms Alison King v Twin Town Services Club Ltd T/A Town Towns Clubs & Resorts

[2021] FWC 81

[2021] FWC 81

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Alison King
v
Twin Town Services Club Ltd T/A Town Towns Clubs & Resorts
(U2020/14197)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 JANUARY 2021

Application for an unfair dismissal remedy.

Background

[1] This decision concerns an application by Ms Alison King (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act), in respect of her dismissal by an entity named in the Form F2 application as Twin Towns Services Club Ltd T/A Town Towns Clubs & Resorts (sic). The entity which responded to the application is Twin Towns Services Club Pty Ltd (Respondent).

[2] The Form F2 application states that the Applicant was notified of her dismissal on 24 September 2020 and that it took effect on that date. On the basis of the material filed by the parties, it is arguable that this this statement is incorrect and that the dismissal actually took effect on 28 September 2020 after the Applicant rejected an offer made by the Respondent that she resign and receive payment in lieu of notice and the Respondent sent the Applicant a letter notifying her that she had been dismissed. The application was made on 28 October 2020. The Respondent objects to the application on the basis that it was filed outside the period required in s.394(2) of the FW Act.

[3] By virtue of s. 394(2) of the Act an application under s.394 of the FW Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). If the dismissal took effect as pleaded in the application, on 24 September 2020, the application was required to be made by midnight on 15 October 2020 and was made 13 days outside the time required. If the dismissal took effect on 28 September 2020 the application was required to be made by midnight on 19 October 2020 and was made 9 days outside the required time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the FW Act for the application to be made.

[4] Ms King is represented by Mr Tom Whiteside of the United Workers’ Union (the UWU). On 5 November 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day legislated time frame and that before the merits of the application could be determined a decision would need to be made by the Commission whether to extend the time for filing the application. The Applicant was also advised that the Commission may extend the time for lodging an unfair dismissal application only if satisfied that there were exceptional circumstances and setting out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the FW Act.

[5] The UWU responded to the correspondence on behalf of the Applicant on 10 November 2020 by filing an outline of submissions in support of a further period being granted to Ms King and witness statements made by:

•  Ms King;

•  Mr Rizwanul Chowdhury, Senior Organiser of the UWU;

•  Ms Kate Edmondson, Member Rights Organiser of the UWU;

•  Ms Meegan Edwards, Organiser of the UWU;

•  Ms An Li, Lead – NSW Member Rights Organiser/Officer of the UWU; and

•  Ms Amelia Sereno, Member Rights Organiser for the UWU.

[6] Ms King relies on representative error on the part of the UWU as the reason for the delay in making her application.

[7] The Respondent filed and sought to rely on witness statements made by Mr Troy Philip, Group Operations Manager of the Respondent, and Ms Karen Arnold, Director and Consultant with Effective Workplace Solutions (the Respondent’s representative). The parties agreed that this matter should be determined on the papers.

Extension of time application

[8] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[9] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[10] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[11] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Consideration

Reason for the delay

[12] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[13] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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. 5

[14] The Applicant relies on representative error on the part of the UWU as being the reason for the delay. The evidence and submissions in relation to the reason for the delay in filing the application can be summarised as follows.

[15] The Applicant is a member of the UWU. The Applicant states that on 17 September 2020 she posted a comment on social media which was critical of the Respondent and received a letter from the Respondent on 22 September 2020, suspending her from her employment pending an investigation and requiring her to attend a meeting on 24 September 2020. The Applicant contacted the UWU’s Member Rights Centre (MRC) on 22 September and spoke to Member Rights Organiser Ms Amelia Sereno. The Applicant sent various documents to Ms Sereno and requested representation at the meeting.

[16] The Applicant attended the meeting on 24 September 2020 and was represented by Ms Sereno who attended by telephone and a UWU Delegate, Mr Mark Williams. The Applicant states that she was informed that a decision to terminate her employment had been made and that she could instead resign and her five week notice period would be paid, subject to a deed of release being signed. The Applicant states that she was given until close of business on 25 September 2020 to accept that offer.

[17] The Applicant states that at the conclusion of the meeting, she had a discussion with her representatives at the meeting, UWU Organiser Ms Megan Edwards (who joined the meeting when Ms Sereno was not able to be contacted after a break) and Mr Mark Williams, and informed them that she wished to make an unfair dismissal application. Ms Edwards told the Applicant to “sleep on it” and to call the Union’s MRC the next day if she still wished to make such application. The Applicant called the MRC on 25 September and spoke to Ms Sereno at 3.37 pm informing Ms Sereno that she would not accept the Respondent’s offer to resign and wanted to make an unfair dismissal application with the Union representing her. The Applicant said that Ms Sereno informed her that she would commence preparing the paperwork and that the Applicant should email the Respondent rejecting the offer to resign her employment.

[18] The Applicant emailed the Respondent at 4.49 pm on 25 September 2020 stating that she had decided to proceed with an unfair dismissal application. On Monday 28 September the Applicant received an email from the Respondent with a termination letter attached. That letter was Annexure A to the Form F2 Application and states that at the meeting on 24 September 2020 the Applicant was offered an opportunity to resign her employment and to be paid in lieu of notice and that her advice that she intended to make an unfair dismissal application was taken as an indicating that the Applicant was not “opting to resign and rather accepting the termination as summary dismissal”. The letter went on to advise the Applicant that her employment was terminated summarily with effect from 24 September 2020.

[19] On Tuesday 29 September the Applicant had a further conversation with Ms Sereno about her unfair dismissal claim during which Ms Sereno requested that the Applicant send her some pay slips and advised that she would be putting the paperwork together and the claim would then be sent to an Industrial Officer to file. The Applicant states that she emailed Ms Sereno to advise that she could not locate her pay slips. The Applicant also states that she understood that the UWU would file the unfair dismissal application on her behalf and would contact her about the next steps.

[20] The Applicant did not hear from the Union again until 28 October 2020 when Ms Edwards called her about a job opportunity. The Applicant states that she asked Ms Edwards about the progress of her unfair dismissal application and Ms Edwards said that she would look into it and get back to the Applicant. Later that day the Applicant received a telephone call from Mr Thomas Whiteside, an Industrial Officer with the UWU, who advised that a mistake had been made by the MRC and her case had only been referred to the Union’s Industrial Team that afternoon. Mr Whiteside informed the Applicant that he would file her application that afternoon.

[21] The UWU’s evidence on behalf of the Applicant is that Ms Edwards and Ms Sereno advised the Applicant numerous times that the Union would run an unfair dismissal claim if she wished. The UWU witnesses also explained in their evidence that the usual process the Union follows in dealing with dismissals is that members who wish to dispute their dismissal are required to call the Union’s MRC as soon as they become aware of their dismissal. The matter usually stays with the MRC for a period between a few days and two weeks, depending on circumstances and the time left for filing. During this time the MRC conducts preliminary investigations and attempts to negotiate an amicable solution with the employer. If it is determined that the member has access to either an unfair dismissal or general protections remedy, and the employer and employee are unable to reach an agreement during this time, the MRC escalates the matter to the Union’s Industrial Officers for filing.

[22] Ms Sereno confirmed that she attended the meeting between the Applicant and the Respondent on 24 September 2020 and that the Applicant telephoned her on 25 September 2020 and advised that she would not be accepting the Respondent’s offer to resign and instead wanted to make an unfair dismissal claim with the Union representing her. Ms Sereno also confirmed that she advised the Applicant that she would begin preparing the paperwork for an Industrial Officer to assess and that the Applicant needed to inform her employer of her intentions. On 28 September 2020 Ms Sereno received an email from Ms Edwards attaching documents relevant to the Applicant’s case being: a termination letter dated 28 September 2020; the Applicant’s hand written apology read out at the termination meeting; the Applicant’s medical certificate; and relevant club policies.

[23] Ms Sereno further confirmed that she requested that the Applicant provide payslips and was informed by the Applicant on 29 September that she could not locate these. On 30 September Ms Sereno sent an email to her supervisor Mr Riz Chowdhury to refer the Applicant’s unfair dismissal claim to an Industrial Officer. Ms Sereno tendered a covering email setting out relevant points for the Applicant’s claim. Ms Sereno also said that at some point on 2 October 2020 she had a further discussion with Mr Chowdhury about the Applicant’s unfair dismissal claim and Mr Chowdhury directed her to make another colleague – Ms Kate Edmonson – aware of the referral in case the MRC’s new lead, Ms An Li, needed further information. Ms Sereno sent an email to Ms Edmonson at 4.19 pm on 2 October 2020, making her aware of the Applicant’s unfair dismissal referral. The email, tendered by Ms Sereno, states that the matter was being reviewed by Ms Li before being allocated to an Industrial Officer. Ms Sereno then went on a period of personal leave on 6 October 2020 and had no further contact with the Applicant. Ms Sereno’s emails also set out summary points in relation to the circumstances surrounding the dismissal and the basis for an argument that it was unfair.

[24] Ms Li’s position is Lead – NSW Member Rights Organiser/Officer and involves managing the Member Rights Team working in the Union’s MRC. Ms Li’s role also includes assessing any referral from team members before they send the referral to Mr Davis in the NSW/ACT Strategic Power Team, to allocate to an Industrial Officer. Ms Li commenced in that position on 24 September 2020, replacing Mr Chowdhury. There was a handover period between Ms Li and Mr Chowdhury between 24 September and 2 October 2020. Ms Li said that during this period she was still acquainting herself with MRC processes and orientating herself in her new role. Ms Li also said that due to the COVID-19 Pandemic, the MRC Team is currently working partly remotely and partly in the office and it is common for Team members to work about three days from home and two in the office. Further, the MRC Team recently moved from the Union’s former Haymarket Office to the Union’s Redfern Office with the move occurring between mid-September and 2 October 2020.

[25] On 2 October 2020, Ms Li and Mr Chowdhury had a discussion about the merits of the Applicant’s unfair dismissal application, and on 6 October 2020, Ms Li directed Ms Kate Edmondson, another MRC team member, to send the referral form to Mr Davis for filing. Ms Edmonson overlooked forwarding the email and did not refer the Applicant’s referral form on as directed. In her statement, Ms Edmondson says she failed to forward the referral as she failed to flag the email and then forgot about it.

[26] Ms Edwards confirmed that on 28 October, she contacted the Applicant about another matter, and during this call the Applicant asked about the progress of her unfair dismissal application. It was only after this conversation that the Union and the Applicant realised the application had never been referred to Mr Davis and never filed with the Commission. The UWU filed the Applicant’s unfair dismissal application later that day.

[27] Ms Li states that she failed to realise Ms Edmondson’s error until 28 October 2020 which in part was due to her still getting to know the MRC’s internal processes, and still being involved in her handover period. Ms Li states that she is “deeply embarrassed” by the failure to refer the Applicant’s application to Mr Davis within the statutory timeframe.

[28] The UWU submits that the Applicant clearly instructed the Union to file her application on 25 September 2020, 20 days before the statutory deadline, being 15 October 2020. It says that the Applicant had a reasonable expectation that the Union would file her application in accordance with legislative requirements, and she took all steps to act promptly in seeking the Union’s assistance. The UWU notes the Applicant gave clear and unambiguous instructions to the Union to file the application, and the reason for the delay was human error within the Union’s referral processes which the Applicant was not and could not have been aware of.

[29] The UWU submits that the same standard of expertise and professionalism has been applied to Unions as has been applied to legal practitioners or any other paid agent. The UWU also submitted that a Union failing to file an application within time is an unusual or abnormal circumstance. 6 The UWU further submits that when she instructed the Union on 25 and 29 September 2020 to file an unfair dismissal application on her behalf, the Applicant had a reasonable expectation that the application would be filed within the statutory timeframe, and there was nothing to suggest the Applicant should expect any less of the Union. The UWU says that it made clear it was in a position to lodge the application once instructed. In this regard, extensive instructions and documents had been obtained from the Applicant, and beyond this the Union did not suggest to the Applicant it was in the process of assessing whether or not it would act on the Applicant’s behalf. The Applicant was verbally informed that the necessary paperwork would be filed “within a matter of days”.

[30] The UWU submits that it failed to lodge the application by the due date, and it is well established that representative error may constitute an exceptional circumstance warranting an extension. 7 The UWU also submits that these factors weigh in favour of an extension of time, as the Applicant was blameless in the delay.

[31] The Respondent objected to a further period being granted on the basis that it asserted that the Applicant failed to make any enquiries of the Union as to the progress or status of her unfair dismissal claim until well after the expiry of the 21 day statutory time limit and therefore was not blameless for the delay and that there is little or no merit to the unfair dismissal claim.

[32] The Respondent submits that at the time the Applicant was dismissed she had in attendance with her 4 other Union delegates and Union officials as representatives and support persons. At the time of her dismissal, the Applicant was provided with an opportunity to resign and be paid 5 weeks’ pay, subject to a Deed of Release. The Respondent also submits that on 25 September 2020, the Applicant clearly indicated to the Club that she would be taking an unfair dismissal claim and that this would have been known by at least 2 Union officials Ms Edwards and Ms Sereno. The Respondent further submits that despite the Applicant’s advice to the Respondent that she would be taking an unfair dismissal claim, that this does not necessarily give rise to a general expectation that such an application would in fact be made.

[33] The Respondent pointed to the Union’s own admission that the local Organiser did not refer the matter to her supervisor until 30 September 2020, some 5 days after the Applicant had made the decision to make an unfair dismissal claim. It was also noted that the Applicant herself did not make any enquiries nor follow up with the Union officials as to the status of the unfair dismissal claim. In fact, it was only after a chance call made by Ms Edwards to the Applicant on 28 October 2020 in relation to an entirely different matter, that it was discovered that the claim had not been filed. This was nearly 2 weeks after the expiration of the 21 day period and over a month after initially providing instructions to the Union to file the unfair dismissal claim. Further, if Ms Edwards had not made a call to advise the Applicant of an employment opportunity, then it is fair to assume that the application would still be sitting unactioned in the office of the Union.

[34] While the Respondent accepts that this is a clearly a case of representative error, it maintains that this was exacerbated by, and because, the Applicant failed to follow up or make enquiries with the Union as to the status of the Application until weeks after the 21 day expiry date for lodgement of the Application. Consistent with the principle in Clark v Ringwood Private Hospital 8a distinction should be drawn between a delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

[35] The Respondent submits that Applicant was not blameless and the delay was occasioned by the conduct of the Applicant’s failure to make enquiries of the Union as to the status and progress of the claim at all until nearly 2 weeks after the expiration of the statutory time limit when a chance call was made by Ms Edwards to the Applicant. This was said to indicate that the Applicant did not ensure, or attempt to ensure, that the claim was lodged on time. In this regard it was submitted that by or before 15 October 2020, the Applicant should have been contacting the Union officials to enquire as to the status of the claim, particularly given that the Applicant would ordinarily be required to “sign off” on the application to ensure the accuracy and integrity of the application prior to lodgement. That clearly did not happen and based upon the Union’s submissions and evidence, there appears to have been no contact between the Applicant and the Union until nearly 2 weeks after expiration of the statutory time limit. Even then it was simply a chance phone call by Ms Edwards to the Applicant that it was discovered that no application had been lodged.

[36] On the basis of the evidence advanced by the Applicant and the UWU, I am satisfied there is a reasonable explanation for the delay in lodging the application. As previously noted, the relevant period for which an explanation is considered is the period after the prescribed 21-day period for lodging an application. In the present case although there is some uncertainty about when the dismissal took effect, the exact date is immaterial as in either case the application was made outside the required time and the explanation for the delay is relevant to either scenario.

[37] It is clear from the evidence that the reason for the delay is representative error. I am also of the view that the Applicant is blameless in respect of the delay. Within a day of her dismissal taking effect (assuming it took effect on 24 September) or on being informed that she would be dismissed, the Applicant informed the UWU that she wished to pursue an unfair dismissal application and for the Union to represent her.

[38] Representatives of the Union had been present at the meeting which resulted in the Applicant’s dismissal and the evidence also establishes that the Applicant had provided relevant information to the Union prior to the meeting. Further, the Applicant provided all relevant information necessary to make the application prior to the date by which it was required to be made. It is apparent from the evidence that when Ms Sereno forwarded the relevant information to Mr Chowdhury and Ms Edmonson on 30 September and 2 October respectively, all required information to make the application had been received by the Union within a time frame that should have allowed for the application to be made, and nothing more was required of the Applicant. This was due to the fact that various officers of the Union had advised the Applicant prior to the meeting at which she was informed she was to be terminated; represented the Applicant at that meeting; discussed the matter with the Applicant both by telephone and in person and received documentation from her. There was nothing further the Applicant could do to ensure that the application was made.

[39] The failure to make the application in time was the result of a combination of errors on the part of the UWU and other circumstances including that there had been a handover between Mr Chowdhury and Ms Li; the MRC had relocated and relevant staff were working from home rather than in an office environment.

[40] It is well established that a person who places matters into the hands of a representative such as a lawyer, paid agent or union, and takes all reasonable steps to ensure that instructions are provided sufficient to enable an application to be filed within a required time, have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance in the sense that it is unexpected. Further, an Applicant who engages a representative also has a legitimate expectation that advice they are given in relation to procedural matters is correct.

[41] In my view a dismissed employee who seeks support and assistance from a union has every right to expect that the case will be handled with expertise and professionalism, and that necessary steps to prosecute the case will be taken in a timely manner. A union member has as much a legitimate expectation of expertise and professionalism on the part of a union as does the client of a solicitor. Any professional representative, particularly of a kind recognised in the Act, and a Union which receives fees from members for services, engaged to represent a dismissed employee, would be expected to manage the in-time filing of an unfair dismissal application. A failure on the part of any such representative may constitute an acceptable explanation for delay in making an application for the purposes of establishing that there are exceptional circumstances justifying the grant of a further period in which to make the application, where the applicant is blameless and has not contributed to the delay. 9

[42] This is such a case and the fact that there is a reasonable explanation for the delay is a matter that weighs in favour of a further period being granted.

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

[43] While there is some issue as to when the dismissal took effect, and it is arguable that it did not take effect until it was communicated in writing on 28 September 2020, this is a neutral consideration in the present case, given that the later date does not result in the application being made within time. Further, there is no basis for a finding that the Applicant was confused as to the effective date of her dismissal in a way that affected her ability to make an application within time.

Action taken to dispute the dismissal

[44] The Applicant was represented by officers and a delegate of the UWU at the meeting where she was informed of her dismissal which is indicative that it was more probable than not that the dismissal would be disputed. Further, the Applicant advised the Respondent in writing on 28 September 2020 that she intended to make an unfair dismissal application, and in my view the Respondent was on notice that this was at least possible if not probable, in the circumstances.

[45] This is a matter that weighs in favour of the grant of a further period, albeit slightly.

Prejudice to the employer

[46] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[47] The Respondent also submits that the application has little or no merit and in this regard refers to statements of evidence from its Group Operations Manager Mr Troy Phillip and Ms Karen Arnold, Director of Effective Workplace Solutions which provides HR and employment law services and advice to the Respondent. Those statements were said to establish that there was clearly a valid reason for the dismissal; the Applicant was clearly provided with an opportunity to respond to the allegations; the Applicant admitted to the allegations; the Applicant was provided with an opportunity to have a support person present (in fact she ended up with 4 support persons/Union representatives); and the Applicant was provided with warnings (only 3 months prior and stated in that warning that she apologised and vowed that she would never do it again). The Respondent also asserts that its submissions in relation to merit are largely uncontroversial and are factual and on that basis the application should also be dismissed because there is very little merit to the claim.

[48] While there will be cases where on the facts pleaded by the applicant there is minimal or no prospect of success, this is not such a case. It is also the case that a dismissal may be found to be unfair on any number of bases in cases where a person admits to the conduct for which he or she was dismissed. As a Full Bench of the Commission observed in Kornicki v Telstra-Network Technology Group¹⁰:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”11

[49] After considering the material filed by the parties, I do not consider that the application is without merit. Accordingly I am of the view that merit is a neutral consideration in the present case.

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

[50] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[51] There are no other employees of the Respondent in the Applicant’s position. To the extent that this consideration requires a broader approach, representative error is an explanation for delay that has been found in a number of cases to constitute exceptional circumstances and an extension of time in the present case would not be out of step with the approach taken by the Commission in such matters. In the circumstances of this case, I consider this to be a neutral consideration.

Conclusion

[52] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or collectively. Accordingly, I am satisfied that this is a case in which the discretion to extend time should be exercised. An order extending the time for the application in U2020/14197 to 28 October 2020 will issue with this Decision.

[53] The application will be listed for Mention and Directions will be issued for hearing.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726050>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 6   Boakes v St Johns Community Care Limited[2020] FWC 2837.

 7   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; 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 [35].

 8 (1997) 74 IR 413,cited in Davidson v Aboriginal & Islander Child Care Agency (1998) and also in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59.

 9   Boakes v St Johns Community Care Limited [2020] FWC 2837 at [29] to [33].

10 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

11 Ibid.