Ms Isla George v Myer Pty Ltd T/A Myer
[2018] FWC 3131
•4 JUNE 2018
| [2018] FWC 3131 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Isla George
v
Myer Pty Ltd T/A Myer
(C2018/1887)
COMMISSIONER HUNT | BRISBANE, 4 JUNE 2018 |
Application to deal with contraventions involving dismissal – extension of time – alleged representative error – no exceptional circumstances - extension of time not granted.
Introduction and Background
[1] Ms Isla George was employed by Myer Pty Ltd (Myer) from 21 October 1999 until 18 March 2018. Ms George has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed in contravention of the general protection provisions of the Act.
[2] The application was received by the Fair Work Commission (Commission) in the mail by express post on 11 April 2018.
[3] Section 366 of the Act states:
“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.”
[4] For Ms George to have made her application within the statutory time limit of 21 days after the employment came to an end, the application needed to have been filed by Monday, 9 April 2018. Whilst it is true that the 21 day limit expired on Sunday, 8 April 2018, by virtue of s.36(2) of the Acts Interpretation Act 1901(Cth) 1 the time limit is extended until the next working day. The application was received on Wednesday, 11 April 2018, and has been made two days out of time.
[5] Ms George seeks an extension of time within which to make her application. Ms George’s contention is that the application was filed outside of the statutory time limit due to representative error and a medical condition.
[6] A telephone hearing was conducted on 29 May 2018. Ms George appeared and gave evidence in support of her application. Ms Lauren Muraca, Senior Employee Relations Advisor appeared on behalf of Myer.
Ms George’s evidence
[7] Ms George had worked at the Myer Brookside store for a considerable period of time. When the store closed down in approximately January 2017, Ms George then worked at the Myer North Lakes store. She was then directed to work at the Myer Mt Gravatt store from approximately April 2017. She was aggrieved at being directed to work so far from her home and being paid less than the male employee she replaced at the store.
[8] Ms George instructed a paid employment agent, ‘Fair Work Claims’ to represent her and formally notify Myer of her grievance. On 20 December 2017, Mr George Calderon of Fair Work Claims wrote to Myer notifying an industrial dispute in accordance with the General Retail Industry Award 2010. A response was not received, and accordingly, a further letter was sent by Mr Calderon to Myer on 29 December 2017. Mr Calderon noted the holiday season and requested contact by 5 January 2018.
[9] On 19 January 2018 Fair Work Claims wrote to Ms George informing her that a costs agreement must be completed before any further action can be taken on her behalf. A costs agreement was attached to the email. The email noted that if Ms George did not have access to a printer and scanner she could go to her local Officeworks store or her local library. Alternatively, she was invited to download the ‘Camscanner’ app on her smart phone, allowing her to use the phone as a scanner.
[10] On 20 January 2018 Ms George attended upon her medical practitioner. Ms George was certified unfit for work for extensive periods of time and did not return to work when her employment ended approximately two months later.
[11] Fair Work Claims invited Ms George to a meeting in its office on 1 February 2018. The purpose of the meeting was to ‘finalise a few questions…and to review and sign the cost agreement’ as Ms George did not have printing capacity at her home.
[12] Ms George’s evidence is that she attended the meeting, however, when a high profile person also attended the office, those meeting with her elected to cut short her meeting. She did not execute the costs agreement on this day.
[13] On 19 February 2018 Ms George emailed Myer the following:
“Please treat this letter as my “Letter of Resignation”. I am aware of giving 4 weeks notice starting from Monday 19th February 2018 through to Sunday 18th March 2018.
My reasons for resignation is the non-compliant conduct of Myer towards my redeployment from Brookside and the manner in which Myer has dealt with my grievances regarding the underhanded way I as transferred to Mt Gravatt after the promise of North Lakes when Brookside closed.
Also the spurious comments detailed in a letter from [name], and the dishonesty of [name], has left me no other option but to resign as I have no trust or confidence with the Company.
Having given nearly 20 years of my life to Myer I find it disheartening to have been treated in this disrespectful and offensive manner.”
[14] On 7 March 2018. Fair Work Claims emailed Ms George as follows:
“We refer to our email sent to you on 19 January and would appreciate a response at your earliest.”
[15] On 13 March 2018 Ms George had ‘fine needle aspiration’ done on her thyroid where two tumours were discovered. Surgery was booked for 18 April 2018.
[16] On 21 March 2018, Mr Calderon emailed Ms George as follows:
“Dear Isla,
Given we have not heard from you for a significant period of time, we have closed your file.
You still have a good claim for contravention of s45 of the FWA.
There is a limitation period of 6 years from the contravention. If you wish to reopen your file, please get in contact with us.”
[17] On 3 April 2018 Ms George emailed Mr Calderon as follows:
“Hi George
I received your email dated the 21st March, and I have also forwarded to you just before my “resignation letter” to Myer.
I did leave messages for someone to phone me after Jeremy tried to contact me before but I didn’t hear from anyone and then received your letter dated 21st March.
I don’t want to close the file and I understand I need to sign the cost agreement and get it back to you. I did try to do that last time I was in there but it didn’t happen.
…………..
Is it possible for you to phone me sometime soon so that we can discuss how we pursue this mater please, and what it will take.
The delays of late have been a health problem I now have in which there is a lump on my thyroid which needs surgery. They say the thyroid is the emotional gland so makes sense with the stress I have been feeling of what Myer did.
As mentioned, yes I can organise to drop off cost agreement signed, however, could you phone me please.”
[18] Ms George stated that she telephoned Fair Work Claims on 3 April 2018 asking to speak with Mr Calderon, and twice again on 5 April 2018. I understand from her evidence she was not put through to Mr Calderon from reception.
[19] During the telephone hearing questions were put by Myer and by the Commission relevant to the actions taken by Ms George in the period 8 – 11 April 2018. Ms George’s evidence is that she printed and completed the application form at home on 8 April 2018. Her printing cartridge had been replaced by this stage.
[20] She asked her husband to go to an Australia Post store on 9 April 2018 and obtain an express post envelope. He returned that day and she gave the application to him to post that day. She agreed that the earliest the envelope could have hoped to reach the Commission if posted on 9 April 2018 was 10 April 2018, and that the application would still be one day late.
[21] The application form nominates that Ms George thinks she might be within the 21 day time period when she completed the form (she was). She then further stated:
“If it is a couple of days later I was waiting for “fair work claims” to advise me & they failed to do so. I am now doing this myself directly with Commission.”
[22] Following the telephone hearing the Commission obtained the tracking details of the express post envelope to the Commission’s GPO Box. The tracking is produced below:
“Received by Australia Post 10/4/2018 4:32:04pm Albany Creek QLD
In transit 10/4/2018 11:33:11pm Stafford QLD
Processed through
Australia Post facility 11/4/2018 1:38:54am Brisbane City QLD
Delivered 11/4/2018 1:45:20am Brisbane City QLD”
[23] It appears a member of the Commission General Protections Team contacted Ms George by email. Ms George replied on 12 April 2018:
“….I wrote to [Fair Work Claims] and was awaiting their response as I was aware of the 21 days period. They didn’t respond after numerous phone calls as well so I took it upon myself to lodge the application directly with the Fair Work Commission…..”
[24] During the telephone hearing Ms George agreed that she had visited the Commission’s website and informed herself that she had 21 days in which to bring the application. She was asked by me if she was aware that she could have lodged her application by email or phone. She stated that she was not aware and she now wished that she had done so.
Submissions made by Ms George
[25] Ms George submitted that the reason for the delay in bringing the application is because of representational error. She considered that she was represented by Fair Work Claims, and they had failed to respond to her communication, leaving her to make her own application. Further, she was dealing with the news of tumours having been found on her thyroid.
[26] As to action taken by Ms George to dispute the dismissal, she submitted that she was actively pursuing her employment issues through Fair Work Claims but nobody was responding to her.
[27] It is submitted that there is no prejudice to Myer if the extension of time is granted.
[28] Of course, Ms George considers her claim to be meritorious.
Submissions of Myer
[29] Myer submitted that Ms George resigned her employment with the effective end date of 18 March 2018, and denies that she was ‘dismissed’ by Myer. It was submitted that it could not be found that relevant to s.386(1) of the Act, the dismissal would be at its initiative on account of conduct or a course of conduct engaged in by Myer.
[30] As to the reason for the delay, it was submitted that the Commission should not support the claim that Ms George had instructed Fair Work Claims to act on her behalf. In the absence of clear instructions from Ms George to Fair Work Claims to lodge a general protections claim or any indication from them that they would do so, it was submitted that responsibility for failing to lodge the application should fall entirely on Ms George.
[31] Ms George had from 19 February 2018 when she resigned her employment to provide instructions to Fair Work Claims, and she did not do so.
[32] Relevant to the thyroid issue Ms George was dealing with, it was submitted this did not prevent her from bringing her application on 11 April 2018, one week prior to the surgery taking place. There is no medical evidence to support any suggestion that the medical condition she was in would prevent her being able to complete a general protections application in the 21 day period after her employment ceased.
[33] As to the actions taken by Ms George to ‘dispute the dismissal’, it was submitted that Ms George took no actions as she had, in fact, resigned her employment.
[34] Myer acknowledged that it has not suffered significant prejudice as a result of the application having been made two days out of time.
[35] Regarding any merit of the application, Myer considers the application to be ‘weak’.
[36] Myer submitted there is no issue relating to fairness between Ms George and others in a similar position.
Applicable Case Law
[37] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd2 where the Full Bench said:
“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]
[38] For exceptional circumstances to arise as contemplated by s.366 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[39] The onus of establishing exceptional circumstances is on Ms George who needs to provide a credible reason for the whole of the period that the application was delayed.3
[40] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic4 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’
[30] This extract must be read in its entirety. The decision goes on to state:
‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”
Representative error case law
[41] In Graham Jones v Holcim Australia Pty Ltd5 consideration was given to whether an applicant’s conduct was the reason for the delay. Matters for consideration included whether the representative could have taken other actions that would have ensured that the application was filed within time; and whether the applicant was wholly without blame for the delay.
[42] In Michael Edwards v Tiger Airways Australia Pty Ltd T/A Tigerair6, Commissioner Bissett stated:
“[80] I am satisfied that Mr Edwards had engaged representatives to provide him with the best advice available. He trusted them. Errors on their part should not be visited on Mr Edwards in circumstances where he took appropriate action within reasonable timeframes given his personal circumstances.”
[43] In that matter, the incorrect application was filed by the representative, and when the error was detected, no steps were taken by the representative to expedite the filing of the correct application form. It was found in that case that the representative error was the whole reason for the delay and amounted to exceptional circumstances. The Commissioner held that Mr Edwards did not contribute to the delay.
[44] In Phan v GJK Facility Services Pty Ltd T/A GJK Facility Services[2017] FWC 60, Commissioner Lee allowed an extension of time when an application had been filed 25 days late, wholly due to the fault of the union representing the applicant where the applicant had given instructions within a week of his dismissal. The Commissioner allowed the extension because it was solely the union that had failed to act upon repeated instructions.
[45] The test in Clark v Ringwood Private Hospital,7 and the following extract (as paraphrased in Davidson v Aboriginal & Islander Child Care Agency8) should be observed:
“The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.
………….
For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”
[46] In Todd Perry v Rio Tinto Shipping Pty Ltd9at [30] it is stated:
“a person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.”
Consideration
Was there a dismissal at the initiative of the employer?
[47] The Full Bench of the Commission in Hewitt v Topero Nominees 10 makes it clear that when dealing with s.365 applications, the Commission need not be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. The Full Bench said:
“It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” 11
[48] Accordingly, whether there has been a dismissal or not at the initiative of the employer is not a consideration for the Commission in this type of application.
The reason for the delay
[49] Ms George considered for a period of time that she was represented by Fair Work Claims. Certainly, Fair Work Claims had acted on her behalf in December 2017 when it had sent two letters to Myer notifying a dispute. Ms George stated that she paid a sum of money to Fair Work Claims in respect of this representation.
[50] In January and February 2018, however, having been informed of the requirement to execute a costs agreement, Ms George was unable to do so for various reasons. Firstly, she stated that she was unable to print, sign and scan the agreement as requested. She then met with Fair Work Claims on 1 February 2018, however that meeting was abruptly abandoned through no fault of Ms George.
[51] On 19 February 2018, Ms George resigned her employment directly to Myer. Fair Work Claims could not have been aware of Ms George’s decision at this time.
[52] On 7 March and 21 March 2018 Fair Work Claims emailed Ms George. In the latest correspondence Fair Work Claims informed Ms George that it had closed her file. It would seem that there was no response from Ms George to Fair Work Claims until 3 April 2018.
[53] Whilst the correspondence from Ms George to Fair Work Claims of 3 April 2018 is demonstrative of a desire of Ms George to have Fair Work Claims act for her in pursuing some sort of application against Myer, the correspondence is clear that Ms George knew of her obligation to complete a costs agreement. She made numerous references to it, but never actually met that obligation.
[54] Failing Ms George meeting that obligation, and Fair Work Claims having asked her twice to do so, I am satisfied that as at 3 April 2018, Fair Work Claims had not been engaged by Ms George to act on her behalf to make an application to the Commission.
[55] Ms George came to the same conclusion, that Fair Work Claims was not going to assist her when her calls were not returned and she visited the Commission website, discovered the 21 day time limit and obtained the application form.
[56] Having regard to the authorities cited above, I am not satisfied that the reason for the delay is due to representational error. Ms George did not engage or instruct Fair Work Claims to make an application, nor were there any representations made by Fair Work Claims that it would do so on her behalf. It could not be said that promises had been made by Fair Work Claims to Ms George and that she was wholly without blame for the delay.
[57] Ms George’s evidence is that she completed the application form on 8 April 2018. She could have emailed the application on that day or the following day. She could have found another way to provide the application form to the Commission by 9 April 2018.
[58] Ms George’s evidence is that her husband mailed the express post envelope. Whilst it has been discovered that this was first collected by Australia Post at 4.32pm on 10 April 2018, even if it had been first collected by Australia Post on 9 April 2018, it still would not constitute an exceptional reason for the delay. The earliest it could have been received would have been 10 April 2018, one day late, without what I consider to be a suitable explanation.
[59] I have had regard to the understandable concern Ms George would have experienced having discovered that she was suffering from two tumours on her thyroid, and she would require surgery. This was discovered on 13 March 2018. I have had regard to Ms George’s capability to email Fair Work Claims on 3 April 2018, make several phone calls, and ultimately complete an application form on 8 April 2018 within the statutory time limit (without filing it). Whilst I am sympathetic to Ms George having discovered the tumours, she has demonstrated a capacity to undertake difficult tasks during this time.
[60] In all of the circumstances I have determined the reason for the delay weighs against exercising the discretion to grant the extension of time.
Any action taken by the person to dispute the dismissal
[61] I accept that Ms George considered that she was taking action to dispute how the employment came to an end. Ms George took steps to discuss with Fair Work Claims her resignation letter, acknowledging that she would need to complete a costs agreement to progress the matter.
[62] I find that Ms George took some action to dispute how the employment came to an end, however this would not have been known to Myer.
[63] This is a factor that weighs in favour of granting an extension.
Prejudice to the employer (including prejudice caused by the delay)
[64] The delay of two days will not cause any prejudice to the employer other than its costs, if any, relating to its objection to the extension of time application.
[65] Myer has not demonstrated that any other prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.
[66] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
The merits of the application
[67] In the matter of Kornicki v Telstra-Network Technology Group12 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:13
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[68] After considering the material filed by the parties in relation to the substantive application (the Form F8 application and the Form F8A Employer Response), it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.
Fairness as between the person and other persons in a like position
[69] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd: 14
‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’
[70] Neither party made submissions that identify cases of a similar kind, from which consistent principles should be applied to ensure fairness as between them.
[71] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
Conclusion
[72] I have considered each of the criteria set out in s.366(2) of the Act. I am not satisfied that there are exceptional circumstances for me to exercise my discretion to extend time for Ms George to make her application.
[73] Accordingly the application is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR607651>
1 This Act as in force on 25 June 2009 applies to the Fair Work Act 2009 (see s.40A).
2 [2011] FWAFB 975.
3 See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.
4 [2016] FWCFB 349.
5 [2010] FWA 3129.
6 [2017] FWC 4021.
7 (1997) 74 IR 413.
8 (1998) 105 IR 1.
9 [2016] FWCFB 6963.
10 [2013] FWCFB 6321.
11 Ibid at [50].
12 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
13 Ibid.
14 [2016] FWCFB 6963 at [41].
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