Ozlem Bayman v State Super Financial Services Australia Limited T/A State Plus
[2017] FWC 2446
•11 MAY 2017
[2017] FWC 2446
The attached document replaces the document previously issued with the above code on 11 May 2017.
To amend typographical errors throughout the decision.
Associate to Commissioner Johns
Dated 11 May 2017
| [2017] FWC 2446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ozlem Bayman
v
State Super Financial Services Australia Limited T/A State Plus
(U2017/2015)
| COMMISSIONER JOHNS | SYDNEY, 11 MAY 2017 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is about whether the Commission should allow Ozlem Bayman (applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her unfair dismissal application was lodged on 24 February 2017 (UFD Application); that being 42 days after her employment ceased with State Super Financial Services Australia Ltd (respondent) on 13 January 2017.
The jurisdictional objection
On 13 March 2017 the respondent indicated its objection to the Commission exercising its jurisdiction to deal with the UFD Application because it was lodged later than the 21 days after the dismissal took effect. The respondent also objects to the Commission exercising jurisdiction on the basis that, it says, the applicant resigned (i.e. there was no dismissal by the respondent). The second objection was not the subject of the proceedings before me, but is necessarily considered below as a part of the consideration relating to s.394(3)(e) of the FW Act.
Accordingly, the matter proceeded by way of a jurisdictional hearing because the UFD Application was 21 days late.
The Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.
In addition to the evidence received and submissions made on 3 May 2017, in coming to this decision the Commission, as presently constituted, has has regard to the following:
a) F2 – Unfair dismissal application dated 24 February 2017,
b) F3 – Employer Response to Unfair Dismissal Application dated 13 March 2017,
c) Statement of the Applicant dated 31 March 2017 (Exhibit A1),
d) Statement of Murat Bayman (the applicant’s husband) dated 28 April 2017 (Exhibit A2),
e) Medical Certificate dated 28 April 2017 (Exhibit A3),
f) Report from Psychologist dated 17 February 2017 (Exhibit A4),
g) Applicant’s Submissions dated 31 March 2017 (Exhibit A5),
h) Respondent’s Outline of Submissions (Exhibit R1), and
i) Statement of Tracy Murphy, the respondent’s “General Manager, People, Learning and Culture, dated 26 April 2017 (Exhibit R2).
The jurisdictional hearing
At the jurisdictional hearing on 3 May 2017,
a) the applicant was represented by Mr Chris McArdle. Having regard to the information contained in Exhibit A3 I was satisfied that it would be unfair not to allow the applicant to be represented because she was unable to represent herself effectively. Consequently, permission to be represented was granted to Mr McArdle pursuant to s.596(2)(b) of the FW Act. Mr McArdle called both the applicant and her husband to give evidence.
b) the respondent was represented by Ms Jocelyn Williams of Counsel. Because the applicant was granted permission to be represented by Mr McArdle, permission to be represented was granted to the respondent pursuant to s.596(2)(c) of the FW Act because it would be unfair not to allow it to be represented taking into account fairness between the respondent and the applicant in the matter. The respondent’s witness, Ms Murphy, was not required for cross-examination.
Legislative scheme
Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the six nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[3] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
“[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.” [4]
(emphasis added)
Facts leading up to and relating to the dismissal and the filing of the out of time application
The following facts were either admitted or not contested:
a) On 18 March 2013 the applicant commenced working for the respondent. She was employed as an Employer Relations Manager. Essentially her job was to generate introductions to and work for the respondent’s financial planners.
b) From about October 2016 the respondent became concerned about the applicant’s performance against her KPIs. It commenced performance management.
c) On 2 December 2016 the applicant disclosed (for the first time) that she was suffering depression.
d) The applicant took a period of personal sick leave between 5 December 2016 and 2 January 2017.
e) On 3 January 2017 the applicant returned to work, but at lunch time was taken to Liverpool Hospital with severe abdominal pain.
f) The applicant took a further period of personal sick leave from 4 – 13 January 2017.
g) On 13 January 2017 the applicant tendered her resignation. She wrote (in part),
“After careful thought and consideration I have concluded that my core values are not aligned with the dysfunctional culture within the Business Development Department.
It is time to move on to maintain my health and overall happiness.
This letter is to officially inform you that I resign from my position as Employee Relations Manager, effective immediately. This letter also serves as my exit interview and formal letter of complaint.
….
I envisioned working for StatePlus for many more years to come.
Unfortunately, for me it became abundantly clear that my values and work ethics would not allow me to continue working for this department.
….
I will be returning all items that belong to the company to coordinate a handover with Joe O’Louglin at our Liverpool Office.”
h) At the time of her resignation the applicant was employed as an Employer Relations Manager. She earned $118,054.73 per annum.
i) On Monday, 16 January 2017 the respondent wrote to the applicant confirming receipt of her resignation. It also advised that it would be conducting an interview into the matters she complained about in her letter of resignation. It invited her to participate in a meeting.
j) Sometime in the week commencing 16 January 2017 the applicant was driven to the respondent’s Liverpool office by her mother.[5] Once there she returned the respondent’s property and participated in an exit interview with Joe O’Louglin[6] as foreshadowed in her letter of resignation.
k) Between 16 January 2017 and 23 January 2017 the applicant prepared for a family holiday.
l) On 23 January 2017 the respondent sent a follow up email to its 16 January 2017 correspondence asking the applicant to “let [them] know what times and dates [she would be] free.”
m) Later on 23 January 2017 the applicant responded as follows,
“… so sorry I couldn’t respond to you earlier. I was busy preparing the family for a short getaway before they go back to school. I am free tomorrow anytime for a chat over the phone. If you would like to call me.”
n) In the first week of February 2017 the applicant took a holiday with her family at Fingal Bay.[7] The applicant’s evidence was that:
i.she drove there with her husband,
ii.it took about 2 hours to drive there[8], and that, once there,
iii.she
“…just soaked up a bit of sun, just watched my kids spend some time with their Dad. I spent a lot of time in the holiday cabin that we rented and just, you know, sat down and read my book for most of the time and just tried to just de-stress as much as I could.”[9]
o) On 3 February 2017 the 21 days from the date that the employment ceased expired.
p) On 17 February 2017 the applicant underwent surgery.
q) Also around this time the applicant’s representative sought medical information from the applicant’s treating psychologist. On 17 February 2017 the psychologist wrote,
“Ozlem was referred for individual therapy sessions by her general practitioner … on 4 December 2016. Ozlem reported experiencing anxiety, stress and symptoms of low mood and sought individual therapy to assist her in coping. She was seen for her first individual therapy consultation on 6 December 2016 and has continued with individual therapy sessions. A cognitive behavioural therapy approach to to treatment has been used. Based on Ozlem’s progress thus far, further sessions are recommended.”
r) On 24 February 2017 the applicant filed the UFD Application.
Consideration
Sub-section 394(3)(a) - The reason for the delay
It is undisputable that there were 42 days between when the termination of the applicant’s employment took effect and when a proper application was filed with the Commission. The UFD Application was 21 days late.
The applicant says in the weeks prior to her resignation she,
“…became preoccupied by two stressors in [her] life. The first was the oppression and unfairness I felt at work, I was ‘never right’ and seriously micro-managed. My doctor referred me to a psychologist.
On top of that, I developed serious health issues which I refer to. I am no alarmist by nature, but this crisis in my health made me feel very mortal.
….
While I was feeling so seriously apprehensive about the forthcoming operation I discovered that my employer would not approve my leave.
I was sick and in bed when I got the summons to a meeting on 16 January. My doctor had told me to stay away from this environment until it improved so I declined to go. I realised then it meant my employment would end but I - in my sickbed, and facing surgery, along with feeling utterly harassed and damaged – thought that it would permanently damage me if I endured any longer.
After 13 January, I remained in bed, or just sitting at home. I had doctor’s visits, and I was worried about the surgery. Mostly I just sat there in pain crying about the state my life had reached. I am not an emotional type, but I had never had so much go wrong for me so much at once.
I did not attend to the application because I was concentrating on getting through the operation and because I could not emotionally face this matter.
I ask that my health, which is the only cause of this delay, not be a reason for me failing to get a hearing of my application.”
Mr Bayman also attested to his wife’s state at the relevant time. His evidence was that,
“[he] advised his wife to leave her employment. She was becoming so distressed at home that I feared she could suffer in some way that would cause permanent damage. By “distressed” I mean that she constantly complained of headaches, she was aggressive towards me and the children in a way there was nothing like the usual temperament, she was sleepless and tearful.
Ozlem told me what was happening at work. I told her to go to the doctor, which she did….
Importantly, the doctor advised that we go on holidays after she got out of her employment. I thought that was a good idea. Unfortunately, we could not go in January.
We only eventually went in early February for three days. We could not put it off longer because of Ozlem’s surgery on 17 February. During the three days away, Ozlem was unwell, and was only able to sit and watch us at the holiday cabin we rented at Fingle Bay.
The reason we did not go until then was that Ozlem could not physically do anything in January. From her termination on 13 January for the rest of the month, Ozlem was bedridden. Apart from having to go to Newcastle for one day for work they could not be avoided, I stayed home to care for Ozlem in that time. Her mother also stayed with her when I was not there for any reason.
…. [she was] sleeping for most of the time.
…. Ozlem could not participate in the household decisions during January. This got more pronounced after she left work, and she became effectively bedridden.
…. In January she was stuck in her double problem of the physical condition and her depressive state.”
The respondent objected to the receipt of Mr Bayman’s Witness Statement on various grounds. [10] I agree that much of the witness statement suffers from issues of form and relevance. Further, it seeks to express opinions and draw conclusions which were not open to Mr Bayman to form. However, the Commission is not bound by the rules of evidence[11] and consequently, rather than formally ruling on each objection, I have decided to afford Mr Bayman’s evidence little weight in these proceedings. He conceded that it was prepared “in order to help [his] wife out”.[12]
The medical information filed in the proceedings was written on 27 April 2017. The applicant’s treating doctor wrote,
“I can confirm that Mrs Ozlem Bayman is a regular patient of mine…. I saw her several times since October 2016 and her symptoms of work related stress and anxiety. Her symptoms have got particularly worse in December 2016. During this period I prescribed her medication and referred her to see a psychologist. She however continued to get worse and hence I advised her that in the best interests of her health she should take herself out of the work situation. She also became physically unwell from another medical condition around January 2017.
I advised her several times that it isn’t ideal for her to return to the same work environment until the problems she is having at work are resolved. I advised her to take time off with her family or friends to help her distract from the stressful situation.”
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. Consequently, it is necessary to consider the individual reasons put forward by the applicant, each in isolation and then also in combination to determine whether in combination they give rise to exceptional circumstances.
The applicant submitted that the reasons for delay were:
a) incapacity,
b) hospitalisation, and
c) recuperation.
The applicant submitted that:
a) she experienced “documented stresses arising from her employment, and the physiological difficulties … coincided with the termination … caused the delay in making the [UFD] Application.”
b) “The events of 13 January came while the applicant was undergoing continuing care by the psychologist, and while she was fundamentally preoccupied by serious health crisis, which built up to the surgery of 17 February. It is significant that she gave priority to attending to the matter as soon as she was in a physical position to do so.”
The applicant submitted that these circumstances were:
a) out of the ordinary course,
b) unusual, and
c) uncommon.
The respondent submitted that:
a) the applicant has failed to substantiate with sufficient evidence any valid reasons for the delay in making an application,
b) the evidence the applicant has attached in support of a statement is a surgical fee estimate for her laparoscopy on 17 February 2017. 17 February 2017 is approximately one month and four days after the date of the applicant’s resignation on 13 January 2017,
c) it is plain that the applicant’s evidence does not demonstrate why the applicant was not in a position to lodge her unfair dismissal form within 21 days of her resignation on 13 January 2017,
d) the applicant’s resignation letter dated 13 January 2017 points against the conclusion that the applicant was suffering from some incapacity which prevented her from lodging an application with the FWC. The letter demonstrates, or supports an inference, that the applicant had a state of mind in or about 13 January 2017 which allowed her to consider, draft and provide her resignation to the respondent. The letter is two pages and carefully drafted. It outlines numerous matters concerning the applicant’s perceived problems with her employment with the respondent,
e) at no point in the letter did the applicant refer to any mental or physical health issues from which she is currently suffering,
f) the applicant’s email referring to “preparing the family for a short getaway” is inconsistent with the applicant’s evidence that after 13 January 2017 she “remained in bed, or just sitting at home”,
g) prior decisions of the FWC have set a high threshold in determining whether an illness constitutes exceptional circumstances such as to justify delay. These cases all show that for exceptional circumstances to exist, the applicant must demonstrate that the illness caused the inability to file a claim.[13] Generally, an illness to justify the delay, must be a diagnosed illness or hospitalisation that persists the entire length of the delay, not only for a discrete period of the delay,[14]
h) the applicant’s submissions and evidence fail to reach this standard,
i) the FWC has previously refused to grant an extension of time in circumstances where the applicant was:
i.suffering from anxiety, panics attacks and depression, which left the applicant unable to leave the house except for medical appointments,[15]
ii.in poor health as a result of depression and anxiety, which was not held to constitute an incapacity to lodge an application within the time limit,[16]
iii.ill and hospitalised for part of the period of the delay, yet was healthy enough to progress her workers compensation claim and make enquiries with Work Cover and the Fair Work Ombudsman,[17]
iv.suffering from physical and psychological medical conditions that prevented her from ‘thinking clearly’ (namely stress, anxiety, insomnia and back pain), however when advised of the time limit difficulties, she was able to file an electronic application within one day,[18] and
v.suffering ‘stress, shock and confusion’, which were held to not constitute ‘exceptional circumstances’.[19]
j) the applicant’s circumstances during the period of the delay were not ‘unusual, or special, or uncommon’ such as to justify the lengthy delay in filing her application.[20]
It is well accepted that the Commission needs to consider whether an employee has provided a credible reason for the whole of the period that the application was delayed.[21]
Incapacity
What is apparent from the chronology of events is that, in the days following her resignation and before the 21 day time limit expired, the applicant was well enough to:
a) write a detailed letter of resignation on 13 January 2017 after she had been “ able to dedicate careful thought to [her] decision to resign”,[22]
b) attend the worksite to hand over company property and participate in an exit interview in the week beginning 16 January 2017,
c) organise a family holiday between 16 January 2017 and 23 January 2017,
d) respond to an email from the respondent on 23 January 2017 in which she indicated she was willing to make herself available to have a chat over the phone on 24 January 2017,[23] and
e) travel to and attend a family holiday in the first week of February 2017.
Therefore, despite the limited medical evidence and the claims made by the applicant and her husband about her incapacity to file an unfair dismissal claim within time, there were at least 5 days when the applicant had the capacity to do other things and was not bedridden. On those occasions the applicant chose to do those other things rather than to file an unfair dismissal claim. I accept that the applicant may have felt that turning her mind to filing an unfair dismissal claim was not something she was, on those occasions, able to deal with. However, while her subjective experience explains why she did not file an unfair dismissal claim it does not excuse her from having done so.
The applicant relied upon the decision in Ovenden v Fortezza Pty Ltd t/a High Country Automotive Group (Fortezza).[24] In that matter,
“Medical evidence was provided on behalf of the applicant to the effect that he was unable to deal with the notice of termination when it arrived on 23 December 2009 as he was suffering from ‘depression and anxiety exacerbated by work stress’. It was also stated that the applicant was showing signs of Post Traumatic Stress Disorder and suffered from an intellectual impairment. This was the reason given for the delay in submitting the application.”[25]
Consequently, in Fortezza the Commission was satisfied that exceptional circumstances existed because “the applicant’s case [was] particularly unusual”.[26] The Commission found,
“So far as the reason for the delay in filing is concerned, I am satisfied by the medical evidence supplied that the applicant was in no fit condition to deal with the matter until late January 2010. I am also satisfied that the manner in which the termination occurred, and the fact the letter was supplied 2 days before the Christmas holiday break, exacerbated the situation.”[27]
Fortezza can readily be distinguished from the facts in the present case. The quality of the medical evidence presented by the applicant in this matter is not sufficient so as to enable me to form the same conclusion about the applicant’s fitness to file an unfair dismissal claim as did the Commission in Fortezza. None of the medical evidence addresses with any particularity the capacity of the applicant in the 21 days following her resignation on 13 January 2017. The subjective self-reporting of the applicant and observations of her husband are no substitute for the kind of medical evidence that the Commission received in Fortezza.
For these reasons I am not satisfied that the alleged incapacity is a credible reason for the delay. The impact of the dismissal on the applicant was not out of the ordinary course, or unusual, or special or uncommon.
Hospitalisation
As the respondent correctly points out the hospitalisation on 17 February 2017 occurred one month and four days after the date of the applicant’s resignation on 13 January 2017 and two weeks after the 21 day period expired. This cannot explain why the applicant could not lodge her UFD Application within 21 days of her resignation on 13 January 2017. The applicant submitted that it was worry or concern about the impending surgery that meant she could not file her UFD Application in time. However, worry or concern about an upcoming surgical procedure is something that is regularly, or routinely, or normally encountered. For these reasons I am not satisfied that worry or concern about the upcoming surgery is a credible reason for the delay.
Recuperation
The period of recuperation occurred well after the 21 day period expired and cannot be a reason for the failure to lodge within the 21 day period.
The combination of events
Mr McArdle submitted that the Commission should find that there were exceptional circumstances because of what he described as a “cocktail”[28] of events; the distress, the doctor’s attention, the psychological counselling, being sick in bed, being required to attend a meeting with her employer on 16 January and worry about the upcoming surgery. He submitted,
“it is a bad run of luck and I would hate to think that bad runs of luck and a cocktail of horror is … routine. It is particularly unusual.”[29]
In the present matter I disagree with Mr McArdle; either in isolation or in combination I am not satisfied that the reasons for delay advanced by the applicant satisfy the criteria for “exceptional circumstances” in Nulty. Having particular regard to what the applicant had the capacity to do in the 21 days following her resignation, I am not satisfied that in considering all the circumstances of this matter there was a credible reason or reasons for the whole of the period.
For the reasons above, this factor weighs against granting the applicant an extension of time.
Sub-section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that the applicant first became aware of the cessation of her employment on 13 January 2017.
This factor weighs against granting the applicant an extension of time.
Sub-section 394(3)(c) - Any action taken by the person to dispute the dismissal
Other than file the present application the applicant took no other steps in relation to the dismissal.
The lack of action taken by the applicant weighs against granting her a further period to make her application.
Sub-section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
The respondent does not submit that it would suffer any prejudice other than the usual prejudice associated with delay. There would be no exceptional prejudice. This was conceded by Ms Williams.[30]
The prejudice asserted by the respondent is a neutral factor in considering whether to grant the extension of time.
Sub-section 394(3)(e) - The merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[31] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[32]
The Commission, as presently constituted, notes that, for the purpose of determining whether to grant an extension of time to the applicant to file her application, it “should not embark on a detailed consideration of the substantive case.”[33]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
The substantive factual contest between the applicant and the respondent is whether there was a constructive dismissal and, if so, whether that gave rise to an unfair dismissal. The medical evidence, the evidence of the applicant and her husband attests to the experience of the applicant prior to her making her decision to resign. However, it might be argued that, even still, the applicant was not forced into a position where she had to resign. For example, she could have lodged an internal grievance and had the matter investigated by the respondent before deciding to resign.
If the applicant can establish that she was forced to resign then she may be able to establish that the termination of her employment was harsh, unjust or unreasonable and, consequently, unfair. In my opinion it is a weak case. However, the applicant’s case is not without merit or lacking in any substance.
Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.
Sub-section 394(3)(f) - Fairness as between the person and other persons in a similar position
The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion, is not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).
The application for an extension of time is refused. The jurisdictional objection is upheld and the UFD Application for an unfair dismissal remedy is dismissed.
An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr C McCardle for the applicant
Ms J Williams for the respondent
Hearing details:
Sydney,
2017,
May 3.
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] [2011] 203 IR 1
[4] Above note at [13].
[5] Transcript PN98.
[6] Transcript PN89-100.
[7] Transcript PN109.
[8] Transcript PN112.
[9] Transcript PN114.
[10] Transcript PN228-247.
[11] FW Act, s.590.
[12] Transcript PN320.
[13] Hart v Truss Guard Rail Pty Ltd[2016] FWC 3833; Olgierd Cherfi v Tabcorp Assets Pty Ltd T/A Tabcorp (U2016/2263, Cribb C, 20 September 2016); Ovenden v Fortezza Pty Ltd[2010] FWA 3863.
[14] See, e.g., Traie Hansen v Supported Options in Lifestyle and Access Services Ltd T/A Solas (U2015/14933, Asbury DP, 26 August 2016); Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287; Collins v Southern Health
[2014] FWC 2338.
[15] James Borg v Summit Care[2017] FWC 951.
[16] Jeneille Harris v Westpac Banking Corporation t/as Westpac (C2016/3668, Sams DP, Gostencnik DP, Saunders C, 27
July 2016).
[17] Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFC 5933.
[18] Helen Wemyss v Mission Australia Employment Services (U2009/14121, Cambridge C, 9 March 2010).
[19] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287.
[20] R v Kelly (Edward) [2000] 1 QB 198 at 208 (Lord Bingham Cornwall CJ).
[21] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403.
[22] Transcript PN85.
[23] Transcript PN172.
[24] [2010] FWA 3863.
[25] Ibid, para [15].
[26] Ibid, para [27].
[27] Ibid, para [29].
[28] Transcript PN344.
[29] Transcript PN412.
[30] Transcript PN437.
[31] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[32] Ibid.
[33] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
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