Ms Ashlee Ann Wyer v Goodlife Operations Pty Ltd T/A Goodlife Health Clubs
[2022] FWC 2920
•2 November 2022
| [2022] FWC 2920 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Ashlee Ann Wyer
v
Goodlife Operations Pty Ltd T/A Goodlife Health Clubs
(U2022/8867)
| COMMISSIONER WILSON | MELBOURNE, 2 November 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
This decision concerns an application by Ms Ashlee Wyer (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Wyer’s employment with Goodlife Operations Pty Ltd T/A Goodlife Health Clubs was terminated with effect from Sunday 3 July 2022. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on Wednesday 31 August 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).
A question arises as to whether Ms Wyer’s dismissal took effect on either 1 July 2022 or 3 July 2022. For the reasons dealt with below, I find that Ms Wyer’s dismissal took effect on Sunday, 3 July 2022.
Having been dismissed with effect from Sunday 3 July 2022, the last day of the 21 day period was also on a Sunday, namely 24 July 2022. However, the 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect and if the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.[1] Making the necessary adjustment Ms Wyer’s application was therefore filed 37 days outside the 21-day period. Ms Wyer asks the Commission to grant a further period for the application to be made under s.394(3). Goodlife Health Clubs opposes this request.
For the reasons set out below I am not satisfied on the material before me there are exceptional circumstances in Ms Wyer’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.
A determinative conference relating to the application was held by me on 5 October 2022, at which Ms Wyer appeared on her own behalf, assisted by her mother, Ms Kerrie Wyer. Goodlife Health Clubs was represented by its Head of Business and Partnering, Fitness Lifestyle Group, Mr Matthew McNelly.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
The 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’. Exceptional circumstances have been defined as 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.[2] 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.[3]
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.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
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.
BACKGROUND
Ms Wyer’s last day of work was Friday, 1 July 2022, however Goodlife have recorded the date of effect of her dismissal as being Sunday, 3 July 2022. The material before me discloses that all parties regarded the later date as being the date Ms Wyer was notified her employment would end.[4] Further the restructure which led to the conclusion of Ms Wyer’s employment came into effect the next day, 4 July 2022.[5] I therefore find the date of effect of Ms Wyer’s dismissal was 3 July 2022.
Until her employment ended on 3 July 2022 Ms Wyer worked as a receptionist in the Goodlife Health Club, Sandringham, having started work on that position in June 2016 and working variable hours each week on a casual basis.
In June 2022 Ms Wyer received a phone call from the Goodlife Sandringham Club Manager, Luke Gill informing her that all casual receptionist positions would be converted to full-time. Ms Wyer puts that conversation at 14 June 2022, and supports the date with an email she sent Ms Kerrie Wyer on 14 June 2022.[6] Mr McNelley who was not directly involved in the conversation informed the Commission that the conversation more likely took place on 9 June 2022 with what was discussed being part of a national rollout of changes to how the company operates, putting forward these submissions about communications with staff which took place nationally;
“1. On 9 June 2022, a nationwide restructure was announced to Goodlife club staff. This change affected all club based staff across all Goodlife and Fitness First brands.
2. Staff members were advised face to face if they were in the clubs by the Club Managers that day, however if staff were not in attendance, they were phoned by their Club Manager.
3. On 9 June 2022, at approximately 10 :30am Mr Luke Gill (Club Manager Sandringham) met with the Applicant in the Sandringham club to advise her of the changes and restructure of the front line roles.
4. The nature of the change was that the two front line roles of Membership Consultant and Member Service Representative were being rolled into a combined role called a Member Service Consultant.”[7] 87
After the proposed change was advised to Ms Wyer, Goodlife submits it gave consideration to whether further work could be provided to Ms Wyer. Mr McNelly argues that consideration to this possibility was given with the company, but that it is against a backdrop of there being fewer hours for those working in the existing front-line roles. Goodlife first gave consideration to the placement of its full-time employees then part-time, and finally casual employees, with the likelihood that not all casual employees may be placed, or work the hours they once did:
“THE COMMISSIONER: What does that mean when it comes down to the Sandringham Club? Does it mean that there are less hours being worked by positions of the type that Ms Wyer once filled?
MR MCNELLEY: Yes, correct, yes. So, essentially, full-timers, you know, a minimum of 38 hours, had to slot those people in first. Then we had any part-timers there. Some part-timers had to be consulted with on a reduction to their minimum entitlement hours and, once all that was covered off, then there was always going to unfortunately be our casual team members that were going to feel the brunt of the hour decrease, unfortunately.”[8]
Goodlife submitted that its Sandringham Manager, Mr Gill, informed Ms Wyer by phone on 20 June 2022 that it could no longer offer her hours and that her employment would cease from 3 July 2022.[9] Ms Wyer gave evidence that she was told by Mr Gill her last day of work would be Friday, 1 July 2022 although she subsequently worked some further time at Goodlife Sandringham on Sunday, 3 July 2022.
Ms Wyer argues that prior to her dismissal taking effect she disputed it by seeking to have her employment status changed from casual employment. She argues that she was eligible for conversion from casual to permanent some time before being dismissed:
“On 27/6/2022 an email was sent to People & Culture with the heading “retrenchment query” asking if, after 6 years of service, I was assessed last year for casual conversion and the outcome of that assessment. The email was onforwarded to People and Culture Business Partner, Paul Mitchell, to investigate. Still waiting for a response.”[10]
The email to Goodlife came from Ms Kerrie Wyer and consisted of the following:
“Hi,
I would like to make this inquiry on behalf of Ashlee Wyer who is being retrenched from Goodlife at Sandringham after 6 years of service as a receptionist. Can you please advise Ashlee is she was assessed last year for casual conversion and the outcome of that assessment.
Thank you.
Regards,
Kerrie Wyer.”[11]
A Goodlife employee acknowledged receipt of the email within an hour of it being sent, replying:
“Hi Kerrie,
Thanks for your email, I'm looping in Ashlee's People and Culture Business Partner, Paul Mitchell, to investigate this for you.
Kind regards,
Tayla”[12]
There was though no contact by Mr Mitchell with Ms Wyer.
Unfortunately, after being dismissed Ms Wyer became very ill and required hospitalisation in order to treat anxiety and depression. Her evidence is that she was hospitalised for this reason between Monday, 18 July 2022 and Friday, 5 August 2022 and that she was under the care of a psychiatrist both during her inpatient time and since.[13] The dates referred to are taken from the applicant’s outline of submissions dealing with the subject of extension of time and are different to those which are set out within her originating application form, the Form F2. Ms Kerrie Wyer (the Applicant’s mother) explained the difference was due to an error on her part when she was completing the Form F2 on behalf of her daughter, which was then corrected when the Outline of Argument was prepared and filed.[14]
Ms Wyer asserts about her illness and hospitalisation that she did not have the cognitive ability to lodge an unfair dismissal application prior to 31 August 2022. Evidence in support of Ms Wyer’s illness, hospitalisation or her cognitive or functioning state has not been provided to the Commission.
Goodlife dispute the extent of Ms Wyer’s illness, saying both that she had ample time to submit an unfair dismissal application prior to the period of hospitalisation and “she also demonstrated evidence of cognitive ability by contacting the business twice within her stated hospitalisation period”.[15]
The reference to Ms Wyer’s contact with Goodlife after termination appears to be contacts made by her in respect of employment separation certificate. First, on 31 July 2022 Ms Wyer sent an email to number of people in Goodlife saying that she needed to acquire a separation certificate. After this, an employment separation certificate was provided to Ms Wyer stating the reason for her leaving Goodlife’s employment was “employee ceasing work voluntarily”.[16] She made further contact with Goodlife on 4 August 2022 requesting an amendment.[17]
An amended Employment Separation Certificate was provided on 15 August 2022 with the reason for separation amended to “other: casual involuntary separation”.[18]
Ms Wyer’s unfair dismissal application was made on Wednesday 31 August 2022 at 9:42 PM with the Applicant and her mother giving this evidence about the circumstances by which it came to be lodged on that day:
“THE COMMISSIONER: You have told me this afternoon that you reflected on the situation when you were in hospital and that led you to thinking that you wanted to make a claim and, again, I need to ask you the same question as I did before, which is why didn't you make it earlier than the 31st?
MS WYER: Yes, so me and my mum knew it was late and, you know, we knew it was late.
MS K WYER: Well, I think we also - I just - I guess it's reflection. Ashlee was hearing stories from her work colleagues there that they were allowed to stay on past the expiry date and she heard that one of them was actually asked to come back and return to work, and I think Ashlee felt that she had been treated unfairly when she was hearing all these stories from her previous workmates at Sandringham.
THE COMMISSIONER: When was that knowledge in proximity to the period between 5 August and 31 August?
MS K WYER: Well, it was probably - it was probably when she finished up, I think she was hearing that, though, wasn't it?
MS WYER: Yes.
MS K WYER: When she was finishing up. I don't know, I don't believe Ashlee was capable of lodging it. I've supported this lodgement for her. She just - even when she came out of hospital, she still wasn't capable of being able to lodge this application, even though, at the back of her mind, this is what she wanted to do.
THE COMMISSIONER: All right. Can I come at it a different way, which is how did it then come to be lodged on 31 August at - I think it was after 9 pm? Just tell me how that came to be, why that day and why not the day before or the day after?
MS WYER: I think that day was one of the last days I heard from the receptionist at Sandringham and they basically said that they kept people on, they were looking at hiring new people when, if they asked, I would have been able to stay. I think that was the final day I heard something from Sandringham and I decided to put - so, yes, that was the day.”[19]
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
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.[20]
Ms Wyer submits three reasons which separately or together may explain the 37-day delay in lodging her application for unfair dismissal remedy. First, she had no capacity to make an application to the Commission, having been hospitalised in the period between Monday, 18 July 2022 and Friday, 5 August 2022. Second, she made enquiries after being notified her job may end about her employment status being moved from casual employment to permanent employment. Third, she put forward that at least part of the delay may be because she and Ms Kerrie Wyer already “knew it was late” proximate to 31 August 2022 when the application was actually made.
The overall timing of the situation faced by Ms Wyer includes these relevant markers:
14 June 2022 – Ms Wyer was told by Mr Gill, the Sandringham manager, that “all casual receptionist positions will be converted to fulltime. He told me that I finish up in two weeks and my last day would be 1/7/2022.”[21]
1 July 2022 – Ms Wyer’s last day of work.
3 July 2022 – the date Goodlife says Ms Wyer’s termination of employment took effect.
18 July 2022 – Ms Wyer entered hospital.
25 July 2022 – the last day for lodgement of an “in time” application (adjusted for the final day of the 21 day period falling on a Sunday).
31 July 2022 – Ms Wyer requests an Employment Separation Certificate.
4 August 2022 – Ms Wyer requests an amended Employment Separation Certificate.
5 August 2022 – Ms Wyer is discharged from hospital.
Ms Wyer claims cognitive incapacity arising from her mental illness, both in relation to the period of her hospitalisation and after, when she remained under the care of a psychiatrist and that she “did not have the cognitive ability to lodge this application prior to 31/8/2022”[22]. No evidence has been provided independently of Ms Wyer about this submission. The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect,[23] and there was none before the Commission in relation to either of the factors relied upon by Ms Wyer. In order to accept evidence of this type, the Commission would expect to have an insight into the extent to which Ms Wyer was incapacitated during the whole of the period following termination of employment.[24]
To the extent that Ms Wyer’s illness may have incapacitated her, such is contradicted by other matters. Ms Wyer knew in mid-June that her job was coming to an end, with her last hours worked on 1 July 2022 and her employment formally ending on 3 July 2022. She did not enter hospital until 18 July 2022, more than two weeks after employment ended, and well within the 21-day time period for the making of an in-time application. It is unlikely Ms Wyer had no capacity to prepare and lodge an application in that period.
Further, Ms Wyer made enquiries of Goodlife about an Employment Separation Certificate during the period she spent as a hospital in-patient, on 31 July and 4 August 2022. Those enquiries are well-constructed and reasoned;[25]
31 July 2022
“Hi,
I am needing to acquire a separation certificate coming from Goodlife. I was told by head office 2 weeks ago it was getting sent on and I have yet to receive it. If this could be done asap as I finished up over 4-5 weeks ago! :)
Regards,
Ashlee”
4 August 2022
“Hi Liza,
Thanks for the certificate , I need this for Centrelink as I got made redundant and it's ticked that I left voluntarily, can this be corrected
Thanks,
Ashlee”
The evidence before me does not lead to a conclusion that Ms Wyer had a lack of capacity due to illness to make her unfair dismissal application during the whole or critical parts of the period between 3 July 2022 and 31 August 2022.
Ms Kerrie Wyer’s enquiry of Goodlife about her daughter’s conversion from casual to permanent was limited, and poorly expressed if it was intended to be a complaint that should be actioned as a means to avoid termination of employment. The email was sent on 27 June 2022, only a few days before Ms Wyer’s last day of work and enquires “Can you please advise Ashlee is (sic) she was assessed last year for casual conversion and the outcome of that assessment”.[26]
The final matter put forward by Ms Wyer explaining the lateness of the application is that when she and her mother came to make the application they knew it was already late. Although the statement may explain why the application was not made a day or two earlier than it was, such does not give an insight to the overall time period it took for the application to be made.
In the circumstances I am not satisfied that an acceptable explanation has been put forward by Ms Wyer as to the reason for the delay in lodging her explanation.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified well prior to 3 July 2022, the date that her dismissal took effect, that “her last day would be 1/7/2022”. Ms Wyer therefore had the full period of 21 days to lodge an unfair dismissal application, which leans against a finding in her favour of exceptional circumstances.
Action taken to dispute the dismissal
Ms Wyer characterises the enquiry made on her behalf on 27 June about her conversion to permanent employment status as an action on her part to dispute the dismissal. I am satisfied the enquiry was made and should have been responded to by Goodlife, but was not. However, as an action taken to dispute the dismissal it was tepid and certainly not put forward to Goodlife as a reason why she should not be dismissed.
Ms Wyer sees the enquiry as being in the context that Goodlife was giving ongoing employment preference to permanent employees over casual employees and that since she was eligible for conversion such should be sufficient protection for her. The fact the lack of response was not followed through by Ms Wyer with a request for response limits my capacity to accept this as a factor in favour of finding of exceptional circumstances, and so I do not make that finding.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted, and none is asserted by Goodlife Health Clubs. 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
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[27] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[28]
The merits of Ms Wyer’s case surround her contention that she should have been reassigned from casual employment to permanent employment either some time earlier than mid-2022 or at the latest once the company’s restructure was put in place. She considers that other casual employees of Goodlife were allowed to continue their employment past 1 July 2022. In these regards Ms Wyer argues:
“1. MC &MSR Changes- FAQ/June 2022 states “Once all permanent (full-time and part time) team members have been redeployed, casual team members will then be assigned based on availability”. I was not allowed to continue my employment past 1/7/2022 when other casual receptionists where allowed to continue working. I spoke with one casual receptionist who was asked to come back . Also, I trained a new casual receptionist who started approximately 6 weeks before the restructure announcement and he may have worked past 1/7/2022.
2. Goodlife Sandringham did not assess me for casual conversion last year. Had they done this I could have sought redeployment as a part time employee. There were redeployment opportunities available. For example, Goodlife Carnegie advertised for a Member Support Consultant on Seek during the notice period. I emailed an expression of interest to the Club and did not receive a response. Goodlife Sandringham advertised on Seek for a Member Support Consultant on 11/8/2022.”[29]
Ms Wyer also argues that on or around 15 June 2022 she had expressed interest in being redeployed to Goodlife’s Carnegie Club, but nothing came of that expression of interest.[30]
Goodlife rebuts these considerations, arguing (as is relevant to the above):[31]
“4. With the new position changes there were also significant adjustments to the existing rostering budgets which meant permanent team members (full time and part time) had to be prioritised for rostered hours in the new structure. Unfortunately for a lot of casual team members they were left without hours and potential termination which was a scenario facing the Applicant.”
And
“5. The Applicant did not request a conversion to permanent employment during her entire period of employment until her request on 27 June 2022 . The casual conversion inquiry that was emailed on behalf of the Applicant on 27 June 2022 was submitted after all the existing rostered hours had been allocated and came far too late for the business to consider a formal request . The inquiry was also submitted after the business had already informed the Applicant that their casual employment would cease on 3 July 2022.
6. If the Applicant was to be considered for casual conversion she would have been deemed unsuitable based on no guarantee of future hours or that her hours as a permanent employee would not be at risk of significant change.”
Goodlife note about the Applicant’s interest in a job at Carnegie that her email was not a full or complete application and that at the stage she expressed an interest in redeployment “the Goodlife Carnegie club was still in the process of seeking expressions of interest from their own club specific staff that had been affected by the roster reductions.”
The differences in these contentions are unable to be resolved on the limited material before me at this time and are best to be considered as each party having an arguable case for their respective views. As a result, in the absence of full argument of either party’s case, I regard this criterion as a neutral consideration in my decision.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[32] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[33] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues and who has been granted an extension of time for the making of a late application.[34]
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Wyer, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms A Wyer, on her own behalf, for the Applicant
Mr M McNelly for the Respondent
Hearing details:
2022.
Melbourne (by Video):
5 October.
< PR747539>
[1] Harjit Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]; making reference to s.36 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock[2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd[2013] FWC 3593.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] See for example, Exhibit A4, Applicant’s Document Bundle, Attachment 7, DHB 64; Exhibit R2, Witness Statement of Matthew McNelley, 6, DHB 95; correspondence to Chambers from Respondent, 18 October 2022.
[5] Exhibit A4, Applicant’s Document Bundle, Attachment 7, DHB 62
[6] Exhibit A4, Applicant’s Document Bundle, Attachment 1, DHB 50.
[7] Exhibit R1, Respondent's Outline of Argument: Objections, 1h, DHB 87.
[8] Transcript, PN 183 – 184.
[9] Exhibit R1, Respondent’s Outline of Argument: Objections, 1b, DHB 86.
[10] Exhibit A2, Applicant’s Outline of Argument: Extension of time, 5, DHB 34.
[11] Exhibit A4, Applicant’s Document Bundle, Attachment 2; DHB 51 – 52.
[12] Ibid.
[13] Exhibit A2, Applicant’s Outline of Argument: Extension of time, 4, DHB 34.
[14] Transcript, PN 61 – 63.
[15] Exhibit R1, Respondent’s Outline of Argument: Objections, 1h, DHB 88.
[16] Exhibit A3, Applicant’s Statement of Evidence, 12, DHB 42, 55.
[17] Exhibit R3, Respondent’s Document Bundle, Attachment 6, DHB 114 – 115.
[18] Exhibit A4, Applicant’s Document Bundle, Attachment 6, DHB 60.
[19] Transcript, PN 72 – 80.
[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[21] Exhibit A3, Applicant’s Statement of Evidence, 5, DHB 41.
[22] Exhibit A2, Applicant’s Outline of Argument: Extension of Time, 4, DHB 34.
[23] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu
Duo (Lynda) [2018] FWCFB 1643, [38], [67].
[24] Ibid.
[25] Exhibit R3, Respondent’s Document Bundle, Attachments 6 and 7, DHB 114 – 115.
[26] Exhibit A4, Applicant’s Document Bundle, Attachment 2; DHB 51 – 52.
[27] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[28] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[29] Exhibit A2, Applicant’s Outline of Argument: Extension of Time, 7, DHB 35.
[30] Exhibit A3, Applicant’s Statement of Evidence, 7, DHB 41.
[31] Exhibit R1, Respondent’s Outline of Argument: Objections, 1h, DHB 87 – 88.
[32] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[33] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[34] Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].
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