Nicole Lord v WorkSafe Victoria
[2012] FWA 4569
•29 MAY 2012
Note: This decision has been redacted upon a joint application of the Applicant and the Respondent.
[2012] FWA 4569 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Nicole Lord
v
WorkSafe Victoria
(C2011/701)
COMMISSIONER RYAN | MELBOURNE, 29 MAY 2012 |
General protections application - jurisdiction challenges - out of time - multiple actions - not dismissed.
[1] An application has been made by Ms Lord under s.365 of the Fair Work Act alleging breach of the General Protections provisions of the Fair Work Act by WorkSafe Victoria which involved the dismissal of Ms Lord.
[2] The respondent in this matter is identified as WorkSafe Victoria. The legal identity of the respondent is the Victorian WorkCover Authority established by s.18 of the Accident Compensation Act 1985 (Victoria). Section 5(1) of the Accident Compensation Act 1985 (Victoria). Section 5 of that Act provides the definition of certain terms and provides, inter alia, that “WorkSafe Victoria means the Victorian WorkCover Authority” and in similar terms s.5(2A) provides that a “reference in this Act to the Authority is to be construed as a reference to WorkSafe Victoria.”
[3] WorkSafe Victoria has raised three jurisdictional challenges to FWA dealing with the application.
[4] WorkSafe Victoria draw attention to the fact that the application was filed 8 days outside the 60 day time limit specified in s.366(1)(a) and WorkSafe Victoria contend that FWA should not extend the time for the making of the application on the basis that there are no “exceptional circumstances” as required by s.366(2) of the Act. (The out of time jurisdictional challenge.)
[5] WorkSafe Victoria also contend that Ms Lord was not dismissed and that the fact of dismissal is a jurisdictional prerequisite as required by s.365(a). WorkSafe Victoria rely upon the fact that Ms Lord resigned from her employment. WorkSafe Victoria contend that for the purpose of s.365(a) the word “dismissed” has the meaning given to that word in s.386 of the Act. (The no dismissal jurisdictional challenge.)
[6] WorkSafe Victoria contend that the application under s.365 cannot be brought by Mrs Lord because of the operation of the prevention of multiple actions provisions of Division 3 of Part 6-1 of the Act. In particular WorkSafe Victoria contend that Ms Lord has made an application under the Occupational Health and Safety Act (Victoria) (the OHS Act) and is therefore barred by s.732 of the Fair Work Act from making a s.365 application. (The multiple proceedings jurisdictional challenge.)
Background
[7] The application was filed with FWA on 6 September 2011 and the Employer’s Response to the Application (Form F8A) was filed on 23 September 2011 and identified the three jurisdictional challenges to the application. The file was originally allocated to SDP Acton who conducted several conferences with the parties but without the matter being settled. The last conference before SDP Acton was held on 27 March 2012. The file was allocated to me on 28 March 2012 for the purpose of having the jurisdictional challenges raised by WorkSafe Victoria determined and on that day I convened a mention hearing by telephone. I issued Directions on 28 March 2012 to the parties in the following terms:
1. The respondent (WorkSafe Victoria) is directed to file with Fair Work Australia, and serve a copy on the applicant, an outline of its submissions and any witness statements and other documentary material the respondent intends to rely upon in support of its jurisdictional objections to this application by close of business 11 April 2012.
2. The applicant (Ms Lord) is directed to file with Fair Work Australia, and serve a copy on the respondent, an outline of its submissions and any witness statements and other documentary material the applicant intends to rely upon in response to the jurisdictional objections raised by the respondent by close of business 2 May 2012.
[8] The matter was listed for hearing on 10 May 2012. This was subsequently, firstly at the request of WorkSafe Victoria and secondly at the request of Ms Lord, relisted to 23 May 2012.
[9] Neither WorkSafe Victoria nor Ms Lord filed witness statements.
[10] Both WorkSafe Victoria and Ms Lord filed written submissions.
[11] At the hearing on 23 May 2012 WorkSafe Victoria sought and was granted permission to be represented by Mr Val Gostencnik, a Partner of Corrs Chambers Westgarth. Ms Lord was unrepresented and conducted the matter on her own behalf.
[12] At the commencement of the hearing on 23 May 2012 Mr Gostencnik in reply to questions from the Tribunal advised that WorkSafe Victoria did not intend to lead any witness evidence in the matter and that the evidence on which they would rely would be by way of cross examination of Ms Lord.
[13] Ms Lord, who had not filed a witness statement, advised the Tribunal that she did not intend to give sworn evidence but was content to rely upon the written submissions and material tendered to the Tribunal and to make additional oral submissions.
[14] No application was made by WorkSafe Victoria to compel Ms Lord to give evidence nor did WorkSafe Victoria make any request to the Tribunal to enable WorkSafe Victoria to have a further opportunity of putting witness evidence before the Tribunal.
[15] The matter proceeded by way of both parties making oral submissions to the Tribunal in support of their respective filed written submissions (which were exhibited in the matter, Exhibit R1 being the WorkSafe Victoria written submissions and Exhibit A1 being Ms Lord’s written submissions) and in opposition to the other parties submissions.
Dealing with Jurisdictional Challenges in s.365 matters
[16] Of the three jurisdictional challenges in this matter one, the out of time jurisdictional challenge, is a matter which must be dealt with by the Tribunal under s.366(2) of the Act. However in relation to the other two jurisdictional challenges the question arises as to whether such matter should be dealt with by FWA.
[17] Mr Gostencnik addressed the Tribunal on this issue and contended that the proper course for the Tribunal was to determine each of the jurisdictional matters. Mr Gostencnik contended that I should follow the decisions of Cloghan C in Jasezski v Australia Post[2010] FWA 9472 and Roe C in Tse v Ready Workforce[2010] FWA 8751 and not the decisions of Cribb C in Hansen v Apex Cleaning Supplies,[2011] FWA 1566 and Williams C in Howie v Norilsk Nickel Australia P/L and others, [2012] FWA 2853. The respective decisions reveal a difference of approach within the Tribunal to dealing with jurisdictional challenges (other than out of time challenges) to applications made under the general protections provisions of the Act. The decisions of Cribb C and Williams C adopt a view that the role of the Tribunal is to convene the conferences as required but not to deal with jurisdictional challenges. The position adopted by Roe C and Cloghan C is to consider and decide jurisdictional matters as they are raised in general protections applications to FWA.
[18] Whilst Mr Gostencnik only drew my attention to the above 4 mentioned cases I am aware that there are a number of decisions of other members of FWA in which the member has decided a jurisdictional challenge to a s.365 or 372 matter. 1
[19] In an earlier decision I considered the decision of Cribb C in Hansen v Apex Cleaning Supplies and came to a different conclusion: Boyar v The House of Life, [2011] FWA 7953.
[20] However as my earlier decision predates Williams C decision in Howie v Norilsk Nickel Australia P/L I need to consider Williams C decision.
[21] In his decision Williams C quoted paragraphs 25 to 36 of the decision of Cribb C in Hansen v Apex Cleaning Supplies and then said:
“[51] I agree with Commissioner Cribb’s reasoning with regard to the matter that was before her.
[52] Applying this reasoning to this matter, the functions of Fair Work Australia with regard to a general protections dispute under section 372 are limited to conducting a conference to deal with the dispute under section 374, but only if the parties to the dispute agree to participate, and if Fair Work Australia considers that a general protections court application in relation to that dispute would not have a reasonable prospect of success advising both parties accordingly. There is no requirement within the legislation for Fair Work Australia to determine jurisdictional questions with respect to section 372 applications.
[53] This limited role for Fair Work Australia has been similarly endorsed with respect to section 773 applications by a Full Bench of Fair Work Australia in Hetherington-Gregory v Harrington Village Motel: 2
“[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.
[9]The statutory requirements upon a Member in relation to a s.776 conference are:
If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and
If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).
[10]A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties.” Underlining added.
[55] As the Full Bench reinforced further at paragraph [15] of that decision the power to determine an application in relation to a termination of employment on alleged unlawful grounds falls exclusively to the Federal Magistrates Court or the Federal Court of Australia under section 539 of the Act, in relation to section 772(1).
[56] In my view the same principle applies in this case. Fair Work Australia is not empowered to determine the issues raised in the Strikeout Application and so potentially determine the original Application with finality. The Respondents’ objection that whilst the Application was made under section 372 the Applicant was dismissed and so the Application must be made under section 365 and is therefore out of time and should be ‘struck out’ is not a matter Fair Work Australia is empowered to decide.
[57] Under section 539 such matters are for determination by either the Federal Magistrates Court or the Federal Court of Australia.
[58] Accordingly I dismiss the Strikeout Application made by the Respondents.”
[22] The Full Bench decision in Hetherington-Gregory v Harrington Village Motel was given prior to the hearing of an appeal and was in response to the Full Bench being asked by the Appellant to issue an Order to Produce against the Respondent. As the Full Bench explained:
“[3]On 6 March 2012, Ms Hetherington-Gregory applied for the making of an order requiring production of documents, directed to the respondent in the appeal, Mr R G Baird and Mrs J B Baird for the Harrington Village Motel (the Respondent). The order sought would require the production of various financial returns of the Respondent, financial information in relation to the Respondent’s business, entitlements paid to Ms Hetherington-Gregory, communications in relation to the state of the Respondent’s premises, medical certificates in relation to Mrs Baird and all documents lodged by the Respondent with Fair Work Australia.
[4] In her reasons for the making of the order Ms Hetherington-Gregory contended that in the s.776 conference before Commissioner McKenna, Mr Baird made inaccurate statements. Ms Hetherington-Gregory also contended that the information sought by her through the order was necessary to allow her “to take up ‘the right of reply’ to the issues raised by Mr Baird in the hearing on the 25 January 2012”.
[5] We refuse to make the order sought by Ms Hetherington-Gregory.
[6] Whilst a requirement upon the Respondent to produce the sort of information detailed in the Schedule to the order to produce might be appropriate in respect of an application to the Federal Magistrates Court or the Federal Court of Australia by Ms Hetherington-Gregory under s.779 of the Act, for a determination of her claim by the Federal Magistrates Court or the Federal Court of Australia, the making of such an order is not appropriate for either the conduct of a s.776 conference by Fair Work Australia or, as is currently the case, an appeal in relation to such a conference.
[7]In our view, the application for the order to produce by Ms Hetherington-Gregory for the purposes of her appeal is based on a fundamental misapprehension as to the nature of a s.776 conference and the function and powers of a Member of Fair Work Australia in conducting such a conference.
[23] To draw from the Full Bench decision a conclusion that a member of FWA must not deal with a jurisdictional challenge to a s.773 application or to a s.365 application, is reading far too much into the decision.
[24] The statement of the Full Bench that “A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties” clearly refers to the limitations on an FWA Member dealing with a s.776 application properly before FWA. The Full Bench was not expressing a view in relation to the role or capacity of an FWA member to hear and determine a jurisdictional challenge to a s.776 application.
[25] The determination of the substantive application under s.365 or s.773 is properly a matter for the courts. However establishing that an application meets the jurisdictional prerequisites of the Fair Work Act is properly a function to be undertaken by FWA.
[26] I am of the view that I should follow my earlier decision in Boyar v The House of Life.
The no dismissal jurisdictional challenge
[27] It is an agreed fact that Ms Lord resigned her employment with effect from 30 June 2011.
[28] I accept the correctness of the submission from WorkSafe Victoria that a dismissal for the purposes of s.365 has the meaning given to it by s.386 of the Act which is, relevantly:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[29] WorkSafe Victoria contended in its written submissions that:
“26 If in fact the termination was at the initiative of the Respondent and not a resignation, a causal link between the Respondent’s actions must be established. The Applicant must show that an act of the Respondent, objectively ascertained was of such gravity that the Applicant’s resignation would be the probable result, or that the conduct left the Applicant with no effective or real choice but to resign from her employment. Further, there must be proximity between the Respondent’s conduct relied upon by the Applicant and her resignation from employment.
27 There is no evidence that the Respondent’s actions prior to the Applicant’s resignation were intended to bring the employment relationship to an end or were of such gravity that the resignation was the probable result or that they negated any real or effective choice on the part of the Applicant. On the evidence available there is no apparent causal correlation between the Applicant’s resignation and the alleged conduct of Ms Coy or comments by Ms Allen.
28 In objectively ascertaining whether there was the requisite gravity inherent in the Respondent’s conduct, the following factors weigh heavily against the Applicant:
(a) The alleged intervention of Ms Coy occurred 2 years prior to the Applicant’s resignation.
(b) The alleged conversation with Ms Allen which is said to have led to the Applicant’s resignation occurred close to one year before the Applicant resigned her employment.
(c) Following the alleged conversation between the Applicant and Ms Allen, the Applicant did not raise her concerns or make any complaints to anyone in the Respondent about Ms Coy’s alleged behaviour, before she resigned her employment
– see paragraphs 12 to 18 above.
(d) Had the alleged comments by Ms Allen been of such seriousness to cause the Applicant to lose trust and confidence in the employment relationship, she could have made a complaint at the time or at any time in the following 12 months.
29 The Respondent submits further that even if the conduct of the Respondent as alleged by the Applicant gave rise to a loss of trust and confidence, this amounted to conduct that would have allowed the Applicant to elect to treat the contract of employment as ending or continue in that employment. Having continued in that employment for almost 12 months, the Applicant elected to keep the contract on foot and waived any right to bring her employment to an end alleging that it was the Respondent’s conduct that resulted in the termination of employment.
30 Accordingly, there is no basis to assert that the Respondent’s actions left the Applicant with no choice but to resign from her employment or that the resignation was the probable result of the Respondent’s conduct.
31 During the four week notice period, there was no attempt by the Applicant to rescind or communicate that her resignation was forced or related to complaints about the conduct of the Respondent or its employees.” 3
[30] The ‘Ms Coy’ referred to in paragraphs 27 and 28 of WorkSafe’s written submissions was identified at paragraphs 38 and 56 as being Ms [word removed] Coy, Human Resources Director.
[31] WorkSafe Victoria relied upon two decisions of Full Benches of the former Australian Industrial Relations Commission in O’Meara v Stanley Works P/L 4 and in ABB Engineering Construction P/L v Doumit 5.
[32] In O’Meara’s case the Full Bench said at para 23, that there is a requirement of:
“....some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[33] In Doumit’s case the Full Bench said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a determination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to be the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for termination by resignation is tested.”
[34] In applying an objective analysis and in staying on the right side of the line regard must be had to what a Full Bench of FWA said in Davidson v The Commonwealth:
“[14]It was submitted by the Applicant, relying upon the decision in J. Searle v Moly Mines Limited, that in determining the issue of jurisdiction the Commissioner should not have considered the reasonableness of the Applicant’s response to the conduct of the Department, only the fact that the conduct lead to him leaving his employment. We consider that this submission involves a misunderstanding of the statutory requirement in s.386(1)(b) of the Act and what was decided in J. Searle v Moly Mines Limited. The inquiry as to whether the conduct of an employer has “forced” an employee to resign necessarily requires consideration as to the appropriateness of the employee’s response: whether the conduct of the employer left the employee with no reasonable choice but to resign.” [citations omitted] 6
What is the conduct of WorkSafe that Ms Lord contends had the result of leaving Ms Lord with no choice but to resign?
[35] In her written submissions Ms Lord contended:
“I had no other choice but to resign from my employment at WorkSafe Victoria – evidence provided to Fair Work by WorkSafe supports this claim for constructive dismissal along with other circumstances. [words removed]
WorkSafe includes in their submission evidence that I believe supports my claims
My exit interview (Corrs – attachment E)
My service request (Corrs – attachment F)
[words removed]
[36] After further elaboration Ms Lord concluded that part of her written statement dealing with the contention of forced resignation with the following:
“It was only after counselling and psychologist appointments and a lengthy period of time did I feel I had any confidence to leave and then after progressively getting unwell again I had no choice but to leave. It was only after leaving that I was able to face the reality of the situation and after time, develop a reduced fear of retribution.” 7
[37] I also note that Ms Lord in her written submission described the adverse action which she alleged occurred. Ms Lord contends:
“I suffered a compensable injury: Post Traumatic Stress Disorder. Ultimately, resignation / constructive dismissal – [words removed] The anxiety and stress that I experienced everyday through exposure to other events related to bullying and poor leadership ensured that I had to resign for health reasons.” 8
[38] The contention that Ms Lord suffered Post Traumatic Stress Disorder whilst employed at WorkSafe Victoria was not challenged by Mr Gostencnik when he contended at PN113 that:
“Paragraph 9 deals with her diagnosis of post traumatic stress disorder as is clear from the material that is before you. That diagnosis occurred before the resignation and indeed it was after a consultation with the psychologist that the applicant says that she resigned.”
[39] Mr Gostencnik in his oral submissions on the out of time jurisdictional challenge drew attention to the fact that Ms Lord never sought to make a WorkCover claim in relation to the alleged bullying at WorkSafe Victoria:
“PN101 She says that she was diagnosed with post traumatic stress disorder, yet not attempt is made to pursue claims that are available to her under the Accident Compensation Act to deal with allegations that the working environment contributed to her illness, and so on.”
[40] Ms Lord responded by saying:
“... So yes, in the resignation part of your submission, Val, you suggested in that that I had made no attempts, yet if I thought that I was injured in my employment such as post traumatic stress disorder, that that would be claimable under workers compensation, and I hadn't done that. And one of the reasons why I hadn't actually gone down on the list of things could possibly be done, is that I know how WorkSafe accept claims, deny claims, process claims, goes through to conciliation, and at the conciliation that is where the person who called me at the start of all of this a couple of years ago works. So I really wasn't going to send myself down there and to be part of that.” 9
[41] Ms Lord’s response is consistent with her primary contention that the conduct of senior executives of WorkSafe Victoria created the situation in which she felt forced to resign her employment.
[42] WorkSafe Victoria contended that the Tribunal should attach significance to the fact that Ms Lord gave 4 weeks’ notice of her resignation and that at no time in that 4 weeks did Ms Lord seek to withdraw the resignation. 10 It was this lack of any attempt to withdraw the resignation that, as WorkSafe Victoria contended, should lead the Tribunal to conclude that the resignation was not forced but was a genuine resignation.
[43] WorkSafe Victoria also drew attention to the fact that during the 4 week notice period WorkSafe Victoria initiated an exit interview with Ms Lord and that the concerns which Ms Lord raised at the exit interview were the subject of an investigation by an external body and Ms Lord participated in that investigation.
[44] Several comments need to be made in relation to these two contentions.
[45] Firstly, I note the contentions of Ms Lord in her written submissions where Ms Lord says of all of the matters which I have set out in paragraph 35 above:
“I raised all of these issues during my exit interview
[words removed]
[46] I note that the service request referred to by Ms Lord (Annexure F to Exhibit R1) was sent as an internal email by Ms Lord at 4.06pm on her final day of employment and the contents of that service request are consistent with the contentions of Ms Lord as set out above.
[47] Secondly, I note that the exit interview was conducted on 21 June 2011 and that Ms Lord’s participation in the investigation by an external body of Ms Lord’s concerns only occurred after Ms Lord had left WorkSafe Victoria. The statement made by Ms Lord to the investigator and dated 19 July 2011 was attached to the application filed in this matter. Participation in the investigation after the termination of her employment is consistent with the contentions of Ms Lord concerning her position whilst employed by WorkSafe Victoria.
[48] There is an inherent weakness in the cases for both sides in relation to this jurisdictional challenge and that is the lack of sworn evidence.
[49] The material before the Tribunal establishes that Ms Lord subjectively believed that the conduct of WorkSafe Victoria forced her to resign her employment. But the question that has to be answered in this matter is whether an objective analysis of the conduct of WorkSafe Victoria leads to the conclusion that the probable result of that conduct was that Ms Lord was left with no reasonable choice but to resign. As the Full Bench made clear in Davidson v The Commonwealth the inquiry “necessarily requires consideration as to the appropriateness of the employees response”.
[50] It is necessary to restate the requirement that a consideration as to whether the dismissal was a voluntary or forced resignation is to be decided by determining whether it was the employer or the employee who initiated the termination of the employment relationship. Thus the focus in any inquiry must be on the conduct of the parties and its effect on the employer/employee relationship.
[51] Both the strength and the detail of the serious issues identified in the submissions of Ms Lord lead me to conclude that WorkSafe Victoria, through several of its employees including its Human Resources Director, acted in a manner which was incompatible with the continuation of an employer/employee relationship continuing between WorkSafe Victoria and Ms Lord. Ms Lord’s decision on 1 June 2011 to give notice of her resignation and her decision on 30 June 2011 to end the employer/employee relationship with WorkSafe Victoria was an appropriate response to the conduct of WorkSafe Victoria.
[52] I note the caution in Doumit’s case where the conduct of the employer is ambiguous. However in the present matter I do not consider the conduct of WorkSafe Victoria to be ambiguous. [words removed]
[53] Whilst that picture has been painted from a subjective viewpoint of Ms Lord I am prepared to accept that objectively what has been painted is a fair representation of the reality.
[54] In this matter where Ms Lord asserts that her resignation was forced and supports that assertion with detailed submissions then prima facie she has the right to invoke the jurisdiction of FWA under s.365 of the Act. WorkSafe Victoria has a right to challenge Ms Lord’s claim that she is within jurisdiction. Having said that where the challenger does not lead any evidence in support of its challenge and where the challenger is in the position of being able to lead evidence which would support its contentions the Tribunal in deciding the jurisdictional challenge on the basis of submissions only should not be quick to deny jurisdiction.
[55] Both parties were content to rely upon their written and oral submissions in relation to this jurisdictional challenge.
[56] Having considered those submissions I am satisfied that Ms Lords resignation was forced “because of conduct, or a course of conduct, engaged in by his or her employer”.
The multiple proceedings jurisdictional challenge
[57] WorkSafe Victoria contends that Ms Lord cannot make an application under s.365 of the Act because of the operation of the operation of Division 3 - Preventing Multiple Actions of Part 6-1 of the Act. The relevant provisions of Subdivision B of Division 3 of Part 6-1 are as follows:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
727 General protections FWA applications
(1) This section applies if:
(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369 (which provides for
FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
[58] The purpose of the provisions in Subdivision B of Division 3 of Part 6-1 of the Act is to prevent a person from ‘double dipping’ where they may have more than one remedy available in relation to their dismissal. 11 The effect of the operation of Subdivision B of Division 3 of Part 6-1 of the Act is to require the person to pick and pursue only one of the available remedies relating to the dismissal.
[59] In particular WorkSafe Victoria contends that Ms Lord has made an application or complaint under s.76 of the OHS Act and that this application or complaint has neither been withdrawn nor failed for want of jurisdiction. Therefore, WorkSafe Victoria contends that s.732 of the Act applies. This means that Ms Lord cannot make a claim under s.365 as that is a claim referred to in s.727.
[60] Ms Lord in response contended that:
“A service request alleging a breach of s.76, in no way provides a personal remedy - this would be made under s.78 OHS Act.” 12
[61] However I also note that when Ms Lord prepared a statement on 19 July 2011 for the purposes of an investigation into her concerns about the conduct of WorkSafe Victoria she stated that:
“I am a former employee of WorkSafe Victoria. I have attended the offices of KPMG, 147 Collins Street Melbourne, to provide further information regarding my formal Section 76 of the Occupational Health and Safety Act 2004 (‘the OHS Act’) complaint of discrimination whilst employed at WorkSafe Victoria (‘WorkSafe’)
[62] The words “application or complaint” as used in s.732 are not defined terms.
[63] The Oxford English Dictionary defines “application” as including the meaning “the action of applying”. The Oxford English Dictionary defines “complaint” to include “a statement of injury or grievance laid before a court or judicial authority for purposes of prosecution or of redress; a formal accusation or charge.”
[64] In the context in which the words “application or complaint” are used, i.e. “an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.”,
it would appear that “an application or complaint” is a reference to a formal initiation of a process, either civil or criminal, under a law of the Commonwealth or of a State or Territory. This approach is consistent with the approach adopted by the courts. 13
[65] Further support for an interpretation of s.732 which requires that the words “application or complaint” should be considered to refer to a formal initiation of a civil or criminal process is to be found in subsection 732(1)(b). The proviso in s.732(1)(b) that the section does not apply if an “application or complaint” has been made under a law of the Commonwealth or of a State or Territory and where the “application or complaint” has either been withdrawn by the applicant or has failed for want of jurisdiction could only have effect if the “application or complaint” was capable of being withdrawn or was able to be subject to a jurisdictional finding by the body with responsibility for dealing with the “application or complaint”. In both of the circumstances contemplated in paragraphs 732(1)(b)(i) and (ii) the operation of the proviso appears to be predicated upon the commencement of formal proceedings. I note the Full Bench decision in Du v University of Ballarat[2011] FWAFB 5225 which considered the meaning of ‘withdrawn’ in s.732(1)(b)(i), and said:
“The word inherently involves doing something active by way of withdrawal”.
[66] In support of its contention WorkSafe Victoria took me to the correspondence from Ms Lord to WorkSafe Victoria in which Ms Lord made a “service request” that an inquiry/investigation under s.76 of the OHS Act be commenced. The “service request” was tendered as Annexure F to Exhibit R1 the written submissions of WorkSafe Victoria [words removed]
[67] On the basis that the s.76 request referred to the termination of Ms Lord WorkSafe Victoria contended that the communication was an application or complaint for the purposes of s.732.
[68] I note that s.76 of the OHS Act sits within Division 9 of Part 7 of that Act. To put s.76 in context I set out below the provisions of Division 9 of Part 7 of the OHS Act.
“Division 9-Discrimination against employees or prospective employees
Subdivision 1-Criminal offences and proceedings
76. Prohibition on discrimination
(1) This section applies to-
(a) an employer who dismisses an employee, injures an employee in the employment of the employer or alters the position of an employee to the employee's detriment; and
(b) an employer who threatens to do any of those things to an employee; and
(c) an employer or prospective employer who refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment.
(2) The employer or prospective employer is guilty of an indictable offence if the employer or prospective employer engaged in that conduct because the employee or prospective employee (as the case may be)-
(a) is or has been a health and safety representative or a member of a health and safety committee; or
(b) exercises or has exercised a power as a health and safety representative or as a member of a health and safety committee; or
(c) assists or has assisted, or gives or has given any information to, an inspector, an authorised representative of a registered employee organisation, a health and safety representative or a member of a health and safety committee; or
(d) raises or has raised an issue or concern about health or safety to the employer, an inspector, an authorised representative of a registered employee organisation, a health and safety representative, a member of a health and safety committee or an employee of the employer.
Notes
1. The effect of section 57(2)(b) is that a reference to a health and safety representative includes a reference to a deputy health and safety representative.
2. The offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
(3) An employer or prospective employer may be guilty of an offence against subsection (2) only if the reason mentioned in subsection (2)(a), (b), (c) or (d) is the dominant reason why the employer or prospective employer engaged in the conduct.
(4) An employer or prospective employer who is guilty of an offence against subsection (2) is liable to-
(a) in the case of a natural person, a fine not exceeding 500 penalty units; and
(b) in the case of a body corporate, a fine not exceeding 2500 penalty units.
77. Accused bears onus of proof
In proceedings for an offence against section 76, if all the facts constituting the offence other than the reason for the conduct of the accused are proved, the accused bears the onus of proving that the reason alleged in the charge was not the dominant reason why the accused engaged in the conduct.
78. Order for damages or reinstatement
If an employer or prospective employer is convicted or found guilty of an offence against section 76, the court may (in addition to imposing a penalty) make either or both of the following orders-
(a) an order that the offender pay (within a specified period) such damages to the employee or prospective employee against whom the offender discriminated as the court considers appropriate to compensate him or her;
(b) an order that-
(i) the employee be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or
(ii) the prospective employee be employed in the position for which he or she had applied or a similar position.
Subdivision 2-Civil actions for discriminatory conduct
78A. Prohibition of discriminatory conduct
(1) An employer or prospective employer must not engage in discriminatory conduct for a prohibited reason.
(2) For the purposes of this subdivision, an employer or prospective employer engages in discriminatory conduct if-
(a) the employer of an employee-
(i) dismisses the employee, injures an employee in the employment of the employer or alters the position of the employee to the employee's detriment; or
(ii) threatens to do any of those things to the employee; or
(b) the employer or prospective employer of the prospective employee refuses or fails to offer employment to the prospective employee, or treats the prospective employee less favourably than another prospective employee would be treated in offering terms of employment.
78B. Prohibited reasons
(1) Conduct referred to in section 78A is for a prohibited reason if it is carried out because the employee or prospective employee-
(a) is or has been a health and safety representative or a member of a health and safety committee; or
(b) exercises or has exercised a power as a health and safety representative or as a member of a health and safety committee; or
(c) assists or has assisted, or gives or has given any information to, an inspector, an authorised representative of a registered employee organisation, a health and safety representative or a member of a health and safety committee; or
(d) raises or has raised an issue or concern about health and safety to an employer, an inspector, an authorised representative of a registered employee organisation, a health and safety representative, a member of a health and safety committee or an employee of the employer.
(2) For the purposes of section 78A, an employer or prospective employer may be found to have engaged in discriminatory conduct for a prohibited reason if a reason mentioned in subsection (1) is a substantial reason for the conduct.
78C. Prohibition of authorising or assisting discriminatory conduct
A person must not request, instruct, induce, encourage, authorise or assist an employer or prospective employer to engage in discriminatory conduct in contravention of section 78A.
78D. Civil action for discriminatory conduct
(1) An eligible person may apply to the Industrial Division of the Magistrates' Court for an order under this section.
(2) The Industrial Division of the Magistrates' Court may make one or more of the following orders in relation to an employer or prospective employer who has contravened section 78A-
(a) an order that the employer or prospective employer pay (within a specified period) such damages to the employee or prospective employee who was the subject of the discriminatory conduct as the Court considers appropriate to compensate the employee or prospective employee;
(b) an order that-
(i) the employee be reinstated or re-employed in the employee's former position or, if that position is not available, in a similar position; or
(ii) the prospective employee be employed in the position for which the prospective employee had applied or a similar position;
(c) any other order that the Court considers appropriate.
(3) The Industrial Division of the Magistrates' Court may make one or more of the following orders in relation to a person who has contravened section 78C-
(a) an order that the accused pay (within a specified period) such damages to the person who was the subject of the discriminatory conduct as the Court considers appropriate to compensate the person;
(b) any other order that the Court considers appropriate.
(4) The orders that may be made under subsections (2)(c) or (3)(b) include-
(a) injunctions; and
(b) any other orders that the Industrial Division of the Magistrates' Court considers necessary to stop the conduct or remedy its effects.
(5) For the purposes of this section, each of the following is an eligible person-
(a) a person affected by the contravention;
(b) another person authorised to represent a person referred to in paragraph (a).
(6) Nothing in this section is to be construed as limiting any other power of the Industrial Division of the Magistrates' Court.
78E. Procedure for actions for discriminatory conduct
(1) A proceeding brought for contravention of section 78A or 78C must be commenced not more than 1 year after the date on which the plaintiff knew or ought to have known that the cause of action accrued.
(2) In a proceeding for a contravention of section 78A or 78C, if all the facts constituting the alleged discriminatory conduct other than the reason for the conduct of the accused are proved, the accused bears the onus of proving that the reason alleged in the complaint was not a substantial reason for the conduct.
(3) It is a defence to a proceeding for a contravention of section 78A or 78C if the accused proves that-
(a) the conduct was reasonable in the circumstances; and
(b) a substantial reason for the conduct was to comply with the requirements of this Act or with the Accident Compensation Act 1985.
(4) The making of an order in a proceeding for a contravention of section 78A does not prevent the bringing of a proceeding for an offence against section 76 in respect of the same conduct.
(5) If the Industrial Division of the Magistrates' Court makes an order under section 78D in a proceeding for a contravention of section 78A, the court cannot make an order under section 78 in a proceeding for an offence against section 76 in respect of the same conduct.
(6) If the court makes an order under section 78 in a proceeding for an offence against section 76, the Industrial Division of the Magistrates' Court cannot make an order under section 78D in a proceeding for a contravention of section 78A in respect of the same conduct.
[69] Division 9 is divided into 2 Subdivisions. Subdivision 1 comprising s.76 to 78 deals with criminal offences and proceedings whilst Subdivision 2, comprising s.78A to 78E, deals with civil actions for discriminatory conduct.
[70] There is no mention in Subdivision 1 as to applications or complaints that can be made in relation to a criminal proceeding for discriminatory conduct. However, Subdivision 2, which provides for civil actions for discriminatory conduct, is clearly premised on a complaint being used as the initiating process. The specific reference to “the complaint” in s.78E(2) supports this interpretation.
[71] Proceedings in relation to offences, which would include an offence under s. 76, can only be brought by either by WorkSafe Victoria or by an inspector with written authorisation of WorkSafe Victoria, or if the offence is an indictable offence, by the Director of Public Prosecutions. So much is clear from the provisions of s.130 of the OHS Act which are as follows:
“Proceedings may be brought by the Authority or inspectors
130. Proceedings may be brought by the Authority or inspectors
(1) Proceedings for an offence against this Act may be brought only by-
(a) the Authority; or
(b) an inspector with the written authorisation of the Authority (either
generally or in a particular case).
(2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge-sheet, warrant or summons.
(3) An inspector who brings proceedings may conduct the proceedings before the court.
(4) The Authority must issue, and publish in the Government Gazette, general guidelines for or with respect to the prosecution of offences under this Act.
(5) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an indictable offence against this Act.
The very operation of s.130 of the OHS Act means that Ms Lord cannot make an “application or complaint” under s.76 of the OHS Act. Merely describing the service request as a formal complaint, as Ms Lord did in her statement to an external investigator on 19 July 2011, does not make it so. The language of the OHS Act speaks for itself.
If that were not enough the provisions of s.131 reinforce the exclusive role of WorkSafe Victoria or an authorised inspector in commencing prosecutions for non indictable offences. S.131 of the OHS Act provides as follows:
Procedure if prosecution is not brought
131. Procedure if prosecution is not brought
(1) If-
(a) a person considers that the occurrence of an act, matter or thing constitutes an offence against this Act; and
(b) no prosecution has been brought in respect of the occurrence of the act, matter or thing within 6 months of that occurrence-
the person may request in writing that the Authority bring a prosecution.
(2) Within 3 months after the Authority receives a request it must-
(a) investigate the matter; and
(b) following the investigation, advise (in writing) the person whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought.
(3) If the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.
(5) The Authority must ensure a copy of the advice is sent to the person who made the request and, if the Authority declines to follow advice from the Director of Public Prosecutions to bring proceedings, the Authority must give the person written reasons for its decision.
(6) The Authority must include in its annual report, and publish on its website, a statement setting out-
(a) the number of requests received by the Authority under subsection (1);
and
(b) the number of cases in which the Authority has advised under subsection (2)(b) that a prosecution has been or will be brought, or will not brought; and
(c) the number of cases in which the Director of Public Prosecutions has advised under subsection (4) that a prosecution should be brought or should not be brought.
[72] Section 131 provides a mechanism whereby a person who is aggrieved because neither WorkSafe Victoria nor an authorised inspector will commence a prosecution is entitled to request that WorkSafe Victoria bring a prosecution (s.131(1)). If WorkSafe Victoria decline the request WorkSafe Victoria must, if further requested by the person, refer the matter to the Director of Public Prosecutions (s.131(3)) who must “consider the matter and advise (in writing) WorkSafe Victoria whether or not the Director considers that a prosecution should be brought”.(s.131(4)). WorkSafe Victoria may decline to follow the advice of the DPP but must give reasons to the person (s.131(5)) and report the fact. (s.131(6))
[73] From the foregoing discussion it is clear to me that the request made by Ms Lord to WorkSafe Victoria to investigate a matter under s.76 of the OHS Act cannot be “an application or complaint” under a law of the State of Victoria. Therefore no issue arises under Subdivision B of Division 3 of Part 6-1 of the Fair Work Act.
[74] The finding I make in relation to this jurisdictional challenge has taken into account the meagre material put to me by WorkSafe Victoria and the very limited submissions made by WorkSafe Victoria.
[75] I also have taken into account the contentions of Ms Lord that notwithstanding her “service request” in relation to s.76 of OHS Act that WorkSafe Victoria declined to bring a prosecution against a senior employee of WorkSafe Victoria or against itself. I also note the contention of Ms Lord that she used the provisions of s.131 to involve the DPP but to no avail. 14 These contentions were not addressed by WorkSafe Victoria in either its written or oral submissions.
[76] It is relevant to note that not only is WorkSafe Victoria the employer in this matter but it is also the statutory body which controls the initiation of proceedings for non indictable offences under the OHS Act. If “an application or complaint” under s.76 of the OHS Act had been made by Ms Lord then it would have been possible for WorkSafe Victoria to have produced the file into evidence to establish its case. The very paucity of material in the written and oral submissions of WorkSafe Victoria and the complete lack of sworn evidence from WorkSafe Victoria fortify me in my findings on this jurisdictional challenge.
[77] For the sake of completeness I note that the written submissions of Ms Lord on this matter contained a considerable measure of surmise and speculation as to the role of WorkSafe Victoria and the DPP in handling the s.76 OHS Act matter. Such surmise and speculation can play no part in a proper determination as to whether s.732 is enlivened in this matter.
The out of time challenge
[78] Ms Lord’s dismissal occurred on 30 June 2011. The application in this matter was filed on 6 September 2011.
[79] Section 366 provides as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.”
[80] The application in this matter was not filed within 60 days after the dismissal took effect. The application can only be made if FWA extends the time for making an application pursuant to s.366(1)(b) having regard to s.366(2) of the Act.
[81] Ms Lord in her written submission on this matter specifically sought an extension of time to enable her to make the application in this matter.
[82] Ms Lord in her written submission relied on the decision of a Full Bench in Nulty v Blue Star Group P/L 15 and on the decision of Rares J in Ho v Professional Services Review Committee No 295 (No 2)16 to contend that the combination of circumstances relating to the delay by Ms Lord in making the application constituted “exceptional circumstances”.
The reason for the delay - s.366(2)(a)
[83] In 14 paragraphs of her written submission, Exhibit A1 at pages 9 and 10, Ms Lord sets out the basis for each of the circumstances relating to the reason for her delay in making the application.
[84] Mr Gostencnik for WorkSafe Victoria contended that the stress suffered by Ms Lord after the dismissal was the same as for persons who find themselves unemployed and as such did not amount to an exceptional circumstance 17.
[85] There are 2 matters raised by Ms Lord in her submissions in support of an extension of time which in my view would appear to support the existence of exceptional circumstances. The first circumstances concerned an eye injury suffered by Ms Lord during the 60 day period after 30 June 2011:
“3. During this time I also suffered a severe eye injury where my cornea was cut. I was heavily sedated for 36hrs to ensure that my eye healed. After this time I was required to wear an eye patch and to rest my eyes – I was unable to do any computer work for a few days. This increased my anxiety as I was unable to concentrate on my training assessment tasks and all other matters at hand.” 18
[86] The second circumstance concerned the continuing psychological difficulties of Ms Lord and her absence on holiday on the advice of her psychologist:
2. .....I also suffered great anxiety over even continuing to dedicate myself to the Occupational Health and Safety profession [words removed] I needed help from my psychologist to sort through these matters and focus on healing from my post traumatic stress disorder. The pressure to find paid employment increased my anxiety and stress levels to a debilitating level.
9. Having being diagnosed with post traumatic stress disorder by my treating doctor and under psychological care, I was in an extreme state of stress and anxiety. I was severely conflicted about perhaps letting everything go or fighting for my principles and making the situation right. I attended my psychologist several times through this period.
10. My psychologist recommended that I get away for a period of time to escape the constant pressure and stress. I took my family to Fiji for 7 days (21- 27 July) to escape the madness that had become my life and to attempt to recover from my psychological injuries (I had to borrow money for this holiday – which in hind-sight, was somewhat premature.)” 19
[87] The time lost by Ms Lord from the 60 day time limit under s.366(1)(a) was at least 9 days.
[88] Each of these two circumstances would appear to warrant an extension of time being granted with the cumulative effect of both circumstances warranting an extension of time of 9 days. An extension of time of 9 days is greater than that sought by Ms Lord.
[89] However I must not grant an extension of time unless I take into account each of the 5 matters specified in s.366(2).
Any action taken by the person to dispute the dismissal - s.366(2)(b)
[90] WorkSafe Victoria contended that:
“52. The Applicant did not dispute the dismissal. Relevantly, during an exit interview on 21 June 2011, the Applicant explained her reasons for leaving as follows:
‘I believe the organisation is not aligned to its values. I am aligned to the values so it has been an internal struggle the entire time I’ve been here. I need to get out of this toxic environment. I’m not going to another job. I just need to leave and have a break’ [Emphasis Added]
53 When asked what the Applicant’s manager and/or the wider organisation could have done to keep the Applicant at the Respondent, she stated:
‘Nothing. I need to leave to get better’ [Emphasis Added]” 20
Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)
[91] WorkSafe Victoria contended that in relation to the matter specified in s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay) - “The Respondent acknowledges that .... it suffered no prejudice by the delay” 21
The merits of the application - s.366(2)(d)
[92] I note the warning given by a Full Bench of the AIRC in Kyvelos v Champion Socks P/L:
“...It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 22
[93] In the present matter there is no evidence as to the merits of the application. This is not surprising given that FWA has no role in determining the merits of a general protections application. However the competing contentions of Ms Lord and WorkSafe Victoria present the Tribunal with sufficient material to enable the tribunal to broadly consider the merits of the application.
[94] At the very least I am satisfied that the application is not without merit.
Fairness as between the person and other persons in a like position - s.366(2)(e)
[95] WorkSafe Victoria contended that in relation to the matter specified in s.366(2)(e) - fairness as between the person and other persons in a like position - “this matter is not applicable in the circumstances”. 23 I concur with this contention.
[96] This ignores the contentions of Ms Lord as to what she said during the exit interview, and the fact that Ms Lord lodged her service request for a s.76 OHS Act investigation at 4.06 pm on the day she was dismissed and that Ms Lord participated in the external investigation in relation to the s.76 matter. WorkSafe Victoria conceded that Ms Lord participated in the external investigation in relation to the s.76 matter. 24
[97] The s.76 OHS Act matter was a direct challenge by Ms Lord to the actions of WorkSafe Victoria which forced the resignation of Ms Lord.
Extension of time granted
[98] Having taken into account each of the criteria of s.366(2) I am satisfied that there are exceptional circumstances which relate to the lodgement of the application on 6 September 2011 and I allow Ms Lord to make her application by close of business on 6 September 2011.
Conclusion
[99] As each of the jurisdictional challenges have been decided in favour of jurisdiction existing I will return the file to SDP Acton.
COMMISSIONER
Appearances:
N. Lord on her own behalf
V. Gostencnik for the Respondent
Hearing details:
2012
Melbourne
May 23
1 Yu v Azzura Gelati[2010] FWA 4624; Cugura v Frankston City Council & Melissa King and others[2011] FWA 2292; Louka v Centrelink[2010] FWA 6821; Cutler v BTI Pty Ltd t/a Skybus Coach Service [2011] FWA 45; Beasley v Australian National University t/as ANU[2010] FWA 7308; Gillespie v Aboriginal Legal Service of Western Australia (Inc)[2012] FWA 1156; Shegog v ABC Transport Pty Ltd[2012] FWA 101; Kurta v Independent Oil Tools Pty Ltd [2012] FWA 747; Aitken and another v Virgin Airlines Pty Ltd[2010] FWA 9883
2 [2012] FWAFB 2104
3 Exhibit R1
4 O’Meara v Stanley Works P/L, PR973462
5 ABB Engineering Construction P/L v Doumit, Print N6999
6 Davidson v The Commonwealth,[2011] FWAFB 6265 at para 14
7 Ibid at page 5
8 Ibid at page 5
9 Transcript at PN175
10 Exhibit R1 at para 31 and Transcript at PN106
11 Explanatory Memorandum to the Fair Work Bill, paragraph 2707
12 Exhibit A1 at page 6
13 See for example Chief Mining Warden v District Court of NSW, (1991)23 NSWLR 349, per Priestly JA at 357, with whom Clarke JA and Waddell A-JA agreed, and, Boyce v Owen (200) 156 FLR 321 per Mildren J at para 18, with whom Angel J and Riley J agreed
14 Transcript at PN190-191 and Exhibit A1 at page 6
15 [2011] FWAFB 975
16 [2007] FCA 603 (28 March 2007)
17 Ibid at PN107
18 Exhibit A1 at pages 9-10
19 Ibid at pages 9-1
20 Ibid at pge 9
21 Exhibit R1 at para 54
22 Kyvelos v Champion Socks P/L, Print T2421 at paragraph 14
23 Exhibit R1 at para 58
24 Transcript at PN100
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