Odelon Narce, Jr v Resi Basements Pty Ltd

[2016] FWC 5727

[2016] FWC 5727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Odelon Narce, Jr
v
Resi Basements Pty Ltd
(C2016/4401)

COMMISSIONER WILSON MELBOURNE, 16 AUGUST 2016

Application to deal with contraventions involving dismissal; whether extension of time should be granted.

[1] This matter concerns an application made by Odelon Narce for the Fair Work Commission to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Narce’s application relates to the termination of his employment by the Respondent, Resi Basements Pty Ltd, on 2 June 2016, and was received by the Commission on 6 July 2016 2016.

[2] With the consent of the parties, an Order was issued by me at the hearing of this matter on 11 August 2016, amending the name of the Respondent to Resi Basements Pty Ltd. The application had originally identified an entity named as Straightline Excavators Pty Ltd as the respondent.

[3] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. It is apparent from the dates referred to above that the application is 13 days out of time.

[4] In this decision, I have considered whether an extension of time should be granted to Mr Narce for the making of his application and, for the reasons set out below, I am satisfied that a further period should be allowed for the making of the application.

[5] In considering an application for an extension of time for the making of a general protections application, the Actrequires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 In the same legislative context it has been held that a decision as to whether to extend the time period involves the exercise of a discretion.2

[6] The Respondent, Resi Basements Pty Ltd, objects to the application continuing given that it was commenced after the statutory period for the making of a general protections application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Narce, the Applicant.

BACKGROUND

[8] Odelon Narce was offered employment by the company now named Resi Basements Pty Ltd in August 2015 as a Solid Plasterer with his employment commencing on 9 February 2016.

[9] Mr Narce is a Filipino citizen working in Australia on an appropriate visa and has, according to his witness statement, worked as a plasterer in other countries as well. His employment was subject to two offers of employment from the entity now named Resi Basements, which has recently changed its company name. The first offer was made on 19 August 2015, and in that correspondence Mr Narce was offered remuneration of $28.00 per hour. A second offer was made on 22 September 2015, in which employment on the basis of $35.82 per hour was offered to him. 3 Both offers set out superannuation entitlements and overtime and other benefits that would be paid in addition to the hourly rates mentioned. Both offers were characterised as fixed-term contracts of four years employment, with each being subject to a three month probationary period and the necessity to have the relevant visa granted. Neither specified an actual commencement date for employment.

[10] Mr Narce’s evidence is that his employment with the Respondent was on the basis of this second offer, but that his actual rate of pay as received by him was the lower amount of $28.00 per hour. 4

[11] Mr Narce worked for Resi Basements from 9 February 2016 until the date of his dismissal on 2 June 2016. The material before the Commission about the circumstances and manner of his dismissal is drawn entirely from Mr Narce’s own evidence, with the Respondent not providing any alternative construction either within its Employer Response Form or in the course of the proceedings before me. Mr Narce says his termination of employment followed a discussion with the company’s Director, Tarkan Gulenc. His statement refers to the exchange involving the following;

“10. On the 2nd of June 2016 I attended an induction with the Construction, Forestry, Mining and Energy Union ('the CFMEU'). At the induction, Glen Musgrove of the CFMEU asked me for my blue card. I told him that I did not have it and that I did not know about it. Then Mr Musgrove asked me about my pay which I replied that I was being paid $28.00 per hour. He also asked me to show him my payslip which I did. Mr Musgrove said that he will call my boss and ask him why I was being paid less than that required by the enterprise agreement.

11. Mr Musgrove showed me a piece of paper with the correct pay rates. I was told to stop working while Mr Musgrove called Mr Gulenc. When Mr Gulenc arrived, I was told to continue with my work while Mr Musgrove and Mr Gulenc talked.

12. After Mr Gulenc and Mr Musgrove talked to each other, Mr Gulenc approached me and asked me why I showed my payslip to Mr Musgrove. Mr Gulenc was angry and told me to report to the office in the afternoon.

13. In the afternoon, I went to the office as instructed. Mr Gulenc informed me that he would be buying me a ticket to return to the Philippines because I had talked to the CFMEU about my wages. I begged Mr Gulenc to allow me to keep my job. I explained to him that I did not offer any information until I was asked by Mr Musgrove. Mr Gulenc told me also that he told Mr Musgrove that I was not a solid plasterer to justify my pay.

14. On 6 June 2016, as advised by my representative, I sent a text again to Mr Gulenc apologizing for the trouble and begged him to let me continue with my work at the company. He was not answering my calls. He told me that it was not up to him now that the union know that I was not a plasterer, he said. …” 5

[12] After giving oral evidence in this matter Mr Narce concedes that the import of this discussion was that he lost his job on 2 June 2016. The Respondent’s material before the Commission about the circumstances of Mr Narce’s dismissal is brief, with illumination about its reasons for dismissal coming only from these four paragraphs contained within its Employer Response Form;

“1. The Respondent agrees with the commencement of employment date.
2. The Respondent was terminated on 2 June 2016.
3. The Respondent did purchase the Applicant an airline ticket back to the Philippines.
4. The Respondent denies that the Applicants employment was terminated as a result of his approach to the CFMEU.”

[13] Having been dismissed by Resi Basements on 2 June 2016, Mr Narce spoke with an acquaintance, also a Filipino, who suggested that he contact the Philippine Overseas Labour Office (POLO) at the Philippine Embassy, which he did on 3 June 2016. Mr Narce’s evidence is that he spoke with Rodolfo Sabulao, a Labor Attaché from the Embassy, who advised him not to “lodge any claim with Fair Work as it may have hindered my attempts to resolve the dispute with the Respondent”. 6

[14] As a result of discussions with Mr Narce, POLO sent a letter to Mr Gulenc on 9 June 2016 making representations on behalf of Mr Narce. The correspondence communicates in part;

“…After conducting Interviews of persons who have personal knowledge of [Mr Narce’s] case, I am convinced that he has not violated any of the provisions of DIBP regulations governing 457 subclass visa workers. That being the case, the pre-termination of his employment contract is without basis and therefore illegal.

I have asked Mr. Narce if he wants to go home after briefing him of his workplace rights and obligations as 457 subclass visa worker and he said that he want to avail of the ninety days (90) allowed by the DIBP for him to stay in Australia. He also conveyed to me his decision to raise his illegal dismissal complaint before the Fair Work Commission and Fair Work Ombudsman for other labor standards violation at the proper time.

Considering that before the union incident, he had no problem with the company, I have advised him to defer any action in the hope that he can be allowed to finish his contract with your company.

In this regard, I appeal to you to reconsider your decision to terminate his employment and allow him to finish his contract with your company. He still wants to return to his work so he can support his kids who are in school.” 7

[15] While Mr Sabulao did not give evidence in these proceedings, a statement prepared by him and accepted into evidence records;

“…According to [Mr Narce], he was terminated after the Union protested that the said employer had violated the labor standards of Australia by allowing him to work without a "ticket" and for underpayment of wages.

This certifies further that the worker was advised that under the 457 visa programme, he could remain in Australia for not more than ninety (90) days to secure a new employer/sponsor. However, the worker was not apprised of his right to file a complaint before the Fair Work Commission for Unfair Dismissal because he had worked only for three (3) months and based on a similar case, the Fair Work Commission said that at least, the worker should have served for six (6) months.

Further, this Office requested the Fair Work Ombudsman to handle the claim for underpayment of wages and other work rights violations, such as absence of a written Notice of Termination, and immediate termination without due process but that Office replied that the proper jurisdiction to hear the complaint is the Fair Work Commission.” 8

[16] Neither party to these proceedings identified a response by the Respondent to this communication.

[17] On 16 June 2016 Mr Narce went to the Fair Work Ombudsman (FWO) to seek its help and in the course of discussions with a person at the FWO, he was advised to seek help from the Fair Work Commission. Mr Narce’s evidence is that he did not know about the Fair Work Commission so he sent a message to the POLO office to inquire about what he should do and that, in the course of subsequent communication with POLO, was told by them “that the Fair Work Ombudsman and the Fair Work Commission are the same”. While the Respondent put to Mr Narce in cross-examination that his evidence regarding the FWO and FWC being the same was implausible, Mr Narce did not move from his evidence that that was what he had been told.

[18] Having been dismissed on 2 June 2016, the last day on which a general protections application could have been made by Mr Narce within the 21 day time limit allowed for within the Act was Thursday, 23 June 2016.

[19] On 29 June 2016, Mr Narce spoke to an organisation known as Migrante, which amongst other things provides assistance to Filipinos in Australia, including about their working conditions. They told Mr Narce about the Fair Work Commission. As a result of the things Migrante told him, Mr Narce went to the Commission’s offices and, after explaining his situation, was offered an appointment with the Workplace Advisory Clinic, which he took up and after attending a meeting with them on 6 July 2016 filed a general protections application in the Commission on the same day.

[20] Mr Narce’s general protections application asserts about the circumstances of his dismissal and its connection with the requisite contraventions of the Act for a general protections application to succeed that, while he had been offered a pay rate of $35.82 per hour, that was never paid to him and he was only ever paid $28 per hour. The application also states that he came to be dismissed when;

“Mr Gulenc asked me if I talked to the CFMEU, the union. Apparently, the union called my employer to call their attention regarding my pay.

My employer was mad that I answered the union’s question about my pay.

Mr Gulenc then told me that, I have to go back to the Philippines and that he will send me my airline ticket because I have spoken to the union.

I tried to explain to Mr Gulenc & beg him not to terminate me but he did not listen and did not even give me a chance.

I believe that I did not do anything wrong. I believe I should have been paid the correct amount and if I complain, I believe it is my right.”

LEGISLATION

[21] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 366(2) OF THE ACT

[22] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”. 9

[23] In considering whether an extension of time should be granted to Mr Narce, I am required to consider all of the criteria in s.366(2), which I now do.

1. The reason for the delay

[24] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 10 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.11 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.12

[25] Mr Narce submits that the reason there was a delay by him in making his general protections application is because of his lack of legal knowledge and his poor command of English, compounded by representative error. In relation to representative error Mr Narce submitted that he was entirely dependent on POLO for advice and guidance.

[26] After considering the sequence in which matters unfolded in the month after he was dismissed on 2 June 2016, it is apparent that Mr Narce was, to a certain degree at least, dependent upon assistance from his country’s embassy. However the same sequence shows that at least on 16 June 2016, he was advised by the Fair Work Ombudsman that he should seek help from the Fair Work Commission. Mr Narce says about that circumstance that he was not aware of the distinction between the two bodies and that he then made a further enquiry of POLO about the circumstance who in turn told him that the two were the same.

[27] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Narce to lodge his application. In all, that period was a total of 13 days. I find that Mr Narce’s explanation about his lack of knowledge of the Australian workplace relations system and the advice that he was being given as his explanation for their delay in making an application to the Commission. Ultimately, Mr Narce came to lodge his application on 6 July 2016 because the Workplace Advisory Clinic to whom he had eventually turned had finally given him correct advice about his entitlements and avenues of redress.

[28] The general proposition of course is that a person who knows little of their rights, or who may have been seeking general advice about what to do, is an explanation that does not rise to the level of being either unusual or exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance. 13 In relation to the question of representative error, the Full Bench has qualified the test according to the experience or expertise of the representative. Regard should be had to the professional qualifications and expertise of the representative concerned, and, generally, representative error may be more readily accepted if the person relied upon has appropriate qualifications or expertise than in cases of reliance on a family member or friend.14

[29] To the extent that the Philippine Embassy POLO service can be regarded as a “representative”, there is no evidence before me about its experience or expertise. The advice given by the Embassy’s POLO service appears to be entirely through the prism of whether or not Mr Narce was entitled to make an unfair dismissal application and appears not to have given consideration to whether or not he may be entitled to make a general protections application for having been dismissed for the reason, or for reasons that include, matters proscribed by the Fair Work Act 2009.

[30] At least on the face of the POLO documents provided to the Commission in the Applicant’s material there is no mention of Mr Narce’s entitlement to make a general protections claim and the documents instead are entirely focused upon his unfair dismissal rights. Without wishing to be critical of the work undertaken by POLO, a proper examination of Mr Narce’s circumstances and the complaints made by him would ordinarily lead to advice that he had open to him a general protections claim. His claims are entirely focussed on him being dismissed immediately upon a complaint being made on his behalf about underpayment of wages.

[31] Altogether though, Mr Narce’s explanation for the delay in making his application does not put forward an explanation for what took place in the period between 16 June 2016, being a date before the statutory time limit had expired, when he had been advised by the FWO about his rights to approach the FWC, and 29 June 2016 when he approached Migrante, who then apparently pointedly told him to go to the Commission, a period of about 13 days. All that Mr Narce has put forward about the period between 16 and 29 June 2016 is that he was suffering under the misapprehension that the FWO and FWC were the same, with such being confirmed to him by POLO.

[32] Ordinarily, such would be seen as an unlikely circumstance, which was precisely the point put to Mr Narce in cross-examination by the Respondent. However, after seeing Mr Narce give evidence in this matter, assisted by a very competent Filipino interpreter, it seems to me that he is a person who has difficulty understanding complex matters even in his own language. At the very least, it is evident that Mr Narce was himself confused about what should occur or where he should go. I accept he relied on the matters advised to him by POLO.

[33] The reasons Mr Narce relies upon for the delay in making his general protections application are his lack of legal knowledge and his poor command of English, compounded by representative error. On balance, I consider that Mr Narce has put forward an acceptable reason for the delay.

2. Any action taken by the person to dispute the dismissal

[34] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 15

[35] Mr Narce’s evidence on the question of actions taken by him to dispute his termination is quite clear. Immediately after he was dismissed he spoke to the Philippine Embassy who made representations to his former employer on his behalf over the following week. By all accounts those representations went unanswered. The Respondent’s submissions put forward that this was only one form of complaint and that “it is doubtful this amounts to any action to dispute it… [i]ndeed the letter itself says that he was deferring any action of that type”. 16 I do not accept this proposition. There would not be many circumstances in which a dismissed employee seeks intervention on their behalf from an embassy. There would be fewer where the recipient of an embassy letter then made no response back to the embassy. An analysis of the correspondence sent by the embassy to Mr Gulenc shows what it was putting forward as unambiguous; it makes representations to the employer that it should reconsider Mr Narce’s dismissal when it says;

“Considering that before the union incident, he had no problem with the company, I have advised him to defer any action in the hope that he can be allowed to finish his contract with your company.

In this regard, I appeal to you to reconsider your decision to terminate his employment and allow him to finish his contract with your company.” 17

[36] More than this, and a few days prior to the correspondence from the embassy, there had been text messages sent by Mr Narce to Mr Gulenc. These included the following exchange sent from Mr Narce;

“Good afternoon sir. Sir sorry about the trouble last Thursday. im very sorry sir please give me one more chance to work on your company sir..”

[37] In the circumstances I am satisfied that Mr Narce took appropriate action to question his dismissal with that action being proximate to its date. Accordingly consideration of this criterion resolves in his favour.

3. Prejudice to the employer (including prejudice caused by the delay)

[38] The delay in the filing of the application is 13 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[39] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 18

[40] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

4. The merits of the application

[41] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success. The Full Bench has said about this consideration, within the context of earlier unfair dismissal legislation, that in considering the merits of a matter the Commission is not in a position to make findings of fact on contested issues without evidence being called; that evidence is rarely called on the merits; and that there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case. 19 It has also been observed by the Full Bench, in the context of the current unfair dismissal legislation, that such examination of the merits will only ever be a prima facie consideration.20

[42] The Commission’s consideration of the merits criterion is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.²¹

[43] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 22

[44] The merits of the application to which Mr Narce refers are his claims that he was dismissed as a result of the exchange between him, the CFMEU and Mr Gulenc on 2 June 2016, in which it was highlighted that Mr Narce was not being paid the contracted hourly rate.

[45] In considering Mr Narce’s application, I am satisfied that there is at least an arguable case on his behalf, while noting that the case is as yet untested. The response from the Respondent in these proceedings is a blanket rebuttal that Mr Narce was dismissed as a result of his approach to the CFMEU. It has, to this date, put forward no reason that would allow the Commission to consider it has or could discharge its onus of proof were the matter to proceed to a full hearing either before the Commission or a Court.

[46] The Respondent puts forward about the circumstance that “in the absence of evidence from the decision-maker and an assessment of its credibility, this factor could not be regarded as anything other than neutral.” 23 Such submission, amounting as it does to an invitation to evaluate and determine disputed facts and make findings of credibility, encourages acting inconsistently with the Commission’s approach to accord only a prima facie consideration to the merits.

[47] Mr Narce asserts that he was dismissed immediately following a discussion with his employer about why he was not being paid his contracted hourly rate. No alternative is put forward by the Respondent. It puts forward nothing that would discharge its onus to prove that the adverse action was for reasons other than those alleged by Mr Narce.

[48] As a result, consideration of the merits criterion resolves in Mr Narce’s favour.

5. Fairness as between the person and other persons in a like position

[49] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 24 On balance, I consider this to be a neutral consideration in Mr Narce’s case.

[50] As referred to above, I consider that Mr Narce’s explanation about the delay in making his application resolves in his favour. Further, in combination of the overall circumstances, I am satisfied there are exceptional reasons to exercise my discretion and grant an extension of time for the making of his application.

[51] In combination, those circumstances are the situation in which Mr Narce found himself, which included his lack of knowledge of the Australian workplace relations system, together with his reliance upon advice given to him by the Philippine Embassy which did not, by all accounts, extend to advice that he could make a general protections application; the fact that very pointed representations about the continuation of employment were made by the embassy to the Respondent but which went unanswered, together with the Applicant’s own representations through text message; and finally the absence of anything on behalf of the Respondent that would show it has even a plausible defence to the allegations made by Mr Narce for his dismissal. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Mr Narce.

[52] For these reasons, I grant an extension of time pursuant to s.366 of the Fair Work Act and will issue an order that the time for Mr Narce to file his general protections application made pursuant to s.365 of the Act be extended until 6 July 2016.

COMMISSIONER

Appearances:

Ms M Jenkins of Counsel for the Applicant.

Mr M Follett of Counsel for the Respondent.

Hearing details:

2016.

Melbourne:

August 11.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [9].

 3   Exhibit A1, Witness Statement of Odelon Narce, Annexures ON-1 and ON-2.

 4 Ibid [6].

 5   Ibid [10]-[14].

 6 Ibid [18].

 7   Ibid Annexure ON-4.

 8   Exhibit A2, certification provided by Rodolfo Sabulao, Embassy of the Philippines.

 9   Nulty v Blue Star GroupPty Ltd[2011] FWAFB 975 [13].

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 11   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[2010] FWCFB 7251.

 12   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 13   Nulty v Blue Star Group, Pty Ltd [2011] FWAFB 975 [14].

 14   Officeworks Ltd v David Parker[2014] FWCFB 5779 [18]–[19].

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 16   Exhibit R1, Respondent’s Outline of Submissions, [16].

 17   Exhibit A1 Annexure ON-4.

 18   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 19   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, 2000) Print T2421 [14].

 20   Adey v Christian Heritage College and others[2014] FWCFB 6039 [42].

21 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 22   Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.

 23 Exhibit R1 [22].

 24   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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