Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment
[2021] FWCFB 3305
•16 JULY 2021
| [2021] FWCFB 3305 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Paul Dirkis
v
Staffing and Office Solutions Pty Ltd T/A SOS Recruitment; The Commonwealth of Australia (as represented by the Department of Veterans’ Affairs); Stephen Maddocks; Susan Amzi; Carol Lehmensich; Dr Paul Nicolarakis
(C2021/2429)
VICE PRESIDENT CATANZARITI | SYDNEY, 16 JULY 2021 |
Appeal against decision [2021] FWC 2163 of Deputy President Mansini at Melbourne on 20 April 2021 in matter number C2021/465 - permission to appeal refused.
[1] Mr Paul Dirkis (Mr Dirkis) has filed an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required. Mr Dirkis is appealing a decision 1 of Deputy President Mansini issued on 20 April 2021 (Decision). The Decision dealt with whether he should be granted an extension of time to file an application. The application sought to be filed by Mr Dirkis was an application for the Fair Work Commission (FWC) to deal with a general protections dispute involving dismissal pursuant to s.365 of the FW Act (GP Application).
[2] In the GP Application Mr Dirkis alleged that Staffing and Office Solutions Pty Ltd T/A SOS Recruitment (SOS Recruitment), the Commonwealth of Australia as represented by the Department of Veterans’ Affairs (Veterans’ Affairs), Mr Stephen Maddocks (Mr Maddocks), Ms Susan Amzi (Ms Amzi), Ms Carol Lehmensich (Ms Lehmensich) and Dr Paul Nicolarakis (Dr Nicolarakis) breached the general protection provisions of the FW Act.
[3] In her Decision, the Deputy President determined that Mr Dirkis did not file the GP Application within the statutory timeframe and should not be allowed a further period within which to file the GP Application. Consequently, the Deputy President dismissed the GP Application. It is the decision to dismiss the GP Application that Mr Dirkis seeks permission to appeal.
[4] The application for permission to appeal was heard by way of a telephone hearing on 8 June 2021. SOS Recruitment, Veterans’ Affairs, Mr Maddocks, Ms Amzi and Ms Lehmensich sought permission to be legally represented. Mr Dirkis opposed the granting of permission to be represented. The Full Bench declined the applications for permission to be represented on the basis that it was not satisfied that any of the requirements for the granting of permission to be represented set out in s.596 of the FW Act had been met.
[5] For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[6] Section 366 of the FW Act requires that a general protections application involving dismissal be made within twenty one days after the dismissal took effect, or within such further period as the FWC allows under s.366(2). Section 366(2) provides that an extension of time can only be granted in “exceptional circumstances”.
[7] Mr Dirkis’ employment with SOS Recruitment to perform services on hire to Veterans’ Affairs came to an end effective 26 February 2020. Mr Dirkis did not lodge the GP Application until 29 January 2021. Accordingly, the period of twenty one days ended at midnight on 18 March 2020 and the GP Application was lodged 317 days out of time.
[8] The Deputy President, having established that the GP Application was made after the prescribed timeframe, considered each of the matters set out in s.366(2) of the FW Act in order to determine whether to grant an extension of time namely:
a. the reason for the delay;
b. action taken by Mr Dirkis to dispute the dismissal;
c. prejudice to his employer;
d. the merits of the Application; and
e. fairness as between Mr Dirkis and other persons in a like position.
[9] The Deputy President found that the reason for the delay was because Mr Dirkis initially pursued an unfair dismissal application (UD Application), which was ultimately determined as lacking the necessary jurisdiction, before deciding to file the GP Application.
[10] Relevantly:
a. On 12 March 2020 Mr Dirkis filed the UD Application.
b. On 31 March 2020, SOS Recruitment filed its response to the UD Application which included that it objected to the jurisdiction of the FWC on the grounds that Mr Dirkis was a casual employee and earned more than the high income threshold.
c. On 6 April 2020, SOS Recruitment filed a notice of objection to the UD Application which outlined the grounds of objection as: Mr Dirkis was not dismissed (s.386); his employment did not meet the minimum employment period (s.383), that his employment was not covered by an award or agreement and he earned more than the high income threshold (s.382).
d. On 22 May 2020, SOS Recruitment filed submissions and evidence in support of its jurisdictional objections to the UD Application.
e. On 12 June 2020, Mr Dirkis filed submissions and evidence in response to the jurisdictional objections to the UD Application.
f. On 19 June 2020, the SOS Recruitment filed its submissions and further evidence in reply.
g. On 30 June 2020, the jurisdictional objections in relation to the UD Application were heard.
h. On 7 August 2020 the UD Application was reallocated to another Member to determine based on the materials filed and the transcript of the hearing.
i. On 30 September 2020, the UD Application was dismissed because it was determined that Mr Dirkis’ employment was award-free and agreement-free and his income exceeded the high income threshold.
j. On 20 October 2020, Mr Dirkis filed an appeal of the decision to dismiss the UD Application.
k. On 3 December 2020, the appeal was heard before a Full Bench of the FWC.
l. On 27 January 2021, a Full Bench of the FWC issued a decision in which it granted permission to appeal and dismissed the appeal because the Full Bench was not persuaded that the decision at first instance was affected by appealable error.
m. On 29 January 2021, Mr Dirkis filed the GP Application.
[11] Mr Dirkis submitted that a delay caused by a lack of jurisdiction is an exceptional circumstance within the meaning of s.366 of the FW Act. He asserted that SOS Recruitment “actively and deliberately encouraged” the delay by:
a. misleading and mispresenting that he was award covered;
b. contesting the jurisdiction of the FWC in the unfair dismissal proceedings; and
c. applying to delay the jurisdictional proceedings.
[12] The Deputy President concluded that regardless of any representations (false or otherwise) made by SOS Recruitment to Mr Dirkis prior to his dismissal that Mr Dirkis was on notice from the date upon which SOS filed its response that the UD Application might be jurisdictionally barred. She noted that this was consistent with Mr Dirkis’s own stated views that his employment was not award or agreement covered. She pointed out that the FWC makes available information, via its telephone line and website, to assist unrepresented persons in understanding the available options and navigating the jurisdictions. She also noted that Mr Dirkis has demonstrated that he is capable of comprehending the differences between application types and navigating the complexities of the jurisdiction. In these circumstances she was not persuaded that there was an acceptable explanation for the delay. 2
[13] The Deputy President was satisfied that Mr Dirkis had taken steps to dispute his dismissal. 3
[14] The Deputy President considered prejudice to the employer to be a neutral factor. 4
[15] The Deputy President considered the merits of the Application to be a neutral factor. 5
[16] The Deputy President considered fairness as between Mr Dirkis and other persons in a like position to be a neutral factor. 6
[17] In the absence of what she considered to be an acceptable, reasonable or credible explanation for the delay and with all other factors weighing neutrally the Deputy President determined that the circumstances of the case were not exceptional either individually or when considered together and therefore declined to grant an extension of time.
Principles of appeal
[18] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 8 The public interest is not satisfied simply by the identification of error,9 or a preference for a different result.10 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 11
[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 12 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
[21] Mr Dirkis appeals the Decision on a number of grounds. Firstly, he contends that the Deputy President made significant errors of fact when she made a determination about the complexity of the matter without a hearing. Mr Dirkis submitted that the Deputy President should not have read anything prepared by the Respondents’ lawyers in relation to the proceedings generally before she had determined whether to grant them permission to appear..
[22] At the outset of the hearing the Deputy President invited the parties to make submissions with respect to the granting of permission to be represented and provided her reasons for granting permission to SOS Security, Veterans’ Affairs, Mr Maddocks, Ms Amzi and Ms Lehmensich on transcript.
[23] Veterans’ Affairs, Mr Maddocks, Ms Amzi and Ms Lehmensich initially sought leave to be represented on 29 March 2021 and filed detailed submissions in support of the application. SOS Security sought leave to be represented on 9 April 2021 and also filed detailed submissions in support of their application. Mr Dirkis was therefore on notice from 29 March 2021 that leave would be sought.
[24] This provided Mr Dirkis with an opportunity to prepare and file his submissions opposing leave to be represented. At the hearing he was provided with an opportunity to respond orally to the grounds upon which leave was sought. He indicated that there was nothing further he wished to add to his written submissions other than to refute the assertion that he possessed skills to represent himself and to press his submission that he was at a disadvantage to the other parties if the other parties were granted permission to be represented.
[25] Veterans’ Affairs, Mr Maddocks, Ms Amzi and Ms Lehmensich sought permission on the grounds that the matter would be dealt with more efficiently due to the following complexities associated with the matter:
a. The existence of the earlier proceedings and the impact of those proceedings on the factors that must be considered in resolving a further jurisdictional objection.
b. The alleged contraventions are predicated on the existence of an employment relationship between Mr Dirkis and the Department of Veterans’ Affairs which is factually disputed and inconsistent with the case run by Mr Dirkis in earlier proceedings.
c. The hearing will involve the consideration of complex points of law, including in relation to s.341(c)(ii) of the FW Act (and the potential interplay with workplace laws and instruments asserted by Mr Dirkis to apply) and s.343(1) of the FW Act.
d. the number of respondents joined to the Application.
[26] It was also submitted that it would be unfair not to be granted permission in relation to a second jurisdictional objection proceeding when SOS Recruitment was granted leave in the first jurisdictional objection proceeding (and might be granted such leave again).
[27] SOS Recruitment sought leave on the following grounds:
a. The matter has a complex procedural history in which the legal representatives were involved. Those representatives can assist the FWC to understand the relevant aspects of that history in an efficient matter.
b. Legal representation will assist the FWC to focus on the relevant issues in dispute.
c. SOS Recruitment is not able to effectively represent itself due to a lack of dedicated human resources employees.
d. Mr Dirkis has demonstrated he is capable of representing himself.
e. It is reasonable for the parties to be given the protection of legal representation in responding to and dealing with allegations made by Mr Dirkis against the Respondents and their legal representatives.
[28] On 9 April 2021 Mr Dirkis filed written submissions opposing the granting of leave. Mr Dirkis opposed leave on various grounds including that:
a. The request for leave was made after the Respondents’ submissions in relation to the merit of the application for an extension of time had already been drafted by the legal representatives and read by the Deputy President.
b. The granting of leave in prior proceedings was not relevant to the granting of leave in the current proceedings.
c. The Respondents had access to inhouse lawyers and were therefore able to represent themselves.
d. The legal representatives would not impartially assist the FWC .
e. A conflict of interest arose if the same legal representatives represented different respondents.
f. The legal representatives had not complied with the Legal Services Directions 2017 or the Uniform Legal Profession Act.
[29] The Deputy President determined that leave should be granted on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[30] Mr Dirkis submits that there was no evidence placed before the Deputy President that the matter was complex in order for her to reach such a conclusion.
[31] He also submits that there is clear “disharmony” between the Deputy President’s decision to grant leave and the decisions of the FWC in: Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group [2013] FWC 1320 (Steel C, 1 March 2013), Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd[2012] FWA 5219 (Bartel DP, 19 June 2012) [2012] FWAFB 6832 (Drake SDP, Kaufman SDP, Lee C, 15 August 2012), Asciano Services Pty Ltd v Hadfield ((Hatcher VP, Sams DP, Lawrence DP) C2015/2331), Colin McKerlie v RateIt Australia Pty Ltd t/a RateIt (C2020/4086 and C2020/5851).
[32] Under rule 12(1)(b) of the Fair Work Commission Rules (Cth) 2013 a party’s lawyer or paid agent can act for and represent the party without permission, unless the FWC directs otherwise. For example, unless the FWC directs otherwise, the lawyer or paid agent can:
a. prepare and lodge written applications, responses, submissions and other documents with the FWC; and
b. correspond with the FWC and other parties.
[33] No such direction had been made by the FWC therefore there was no requirement for the parties to seek, or the Deputy President to determine, that permission to be represented be granted prior to the parties filing, or the Deputy President reading, the parties’ materials.
[34] There are considerable benefits in the FWC determining representation in advance of the substantive hearing and advising the parties of the outcome. For example, this avoids unnecessary expenses to the parties of lawyers attending at the hearing if leave is refused. However, the determination of permission need not necessarily be the subject of a separate hearing in advance of the substantive hearing to afford the parties procedural fairness provided the partis are given the opportunity to be heard in writing and/or orally before the determination is made.
[35] The assessment of the adequacy of the Deputy President’s reasons for granting permission must necessarily proceed upon the basis that the decision was an interlocutory one given orally on transcript.
[36] Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.
[37] Section 596(2) of the FW Act provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented, taking into account fairness between the person and other persons in the same matter.
[38] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. 13
[39] In Scott Tracey v BP Refinery (Kwinana) Pty Ltd 14 the Full Bench noted that the criterion in s 596(2)(a) of the FW Act is whether the grant of permission for legal representation would enable the matter to be dealt with more efficiently, not whether it would enable the party seeking to be legally represented to be represented efficiently.
[40] Given that the materials were filed in advance of the proceedings and the Deputy President had the advantage of access to the case management records of the matter, we are satisfied that she was in a position to determine the complexity of the matter based on this information and on the submissions made by the Respondents in support of their application for leave to be represented.
[41] Having determined that the matter would be dealt with more efficiently given the complexity of the matter, the Deputy President exercised her discretion to grant leave to be represented to SOS Recruitment, Veterans’ Affairs, Mr Maddocks, Ms Amzi and Ms Lehmensich pursuant to s.596(2)(a) of the FW Act. As the Deputy President did not grant leave pursuant to s.596(2)(b) or (c), Mr Dirkis’ objections to the granting leave pursuant to either of these provisions cannot form the basis of a valid ground of appeal.
[42] In his next ground of appeal Mr Dirkis contends that the Deputy President made significant errors of fact when she determined that exceptional circumstances did not exist to justify the delay in the lodgement of the GP Application. Mr Dirkis contends that the exceptional circumstances were the fraudulent misrepresentations of SOS Recruitment; the death of the Member to whom the UD Application was initially allocated and COVID lockdowns.
[43] The allegedly false representations referred to by Mr Dirkis are representations he says SOS Recruitment made that his employment was covered by an award. He asserts that such conduct is exceptional because making false representations is prohibited at law and contrary to public policy.
[44] The Deputy President considered the reasons for the delay in her decision at [9] to [29].
[45] In the Decision the Deputy President concluded that regardless of any representations (false or otherwise) made by SOS Recruitment to Mr Dirkis prior to his dismissal, that Mr Dirkis was on notice from the date upon which SOS filed its response that the UD Application might be jurisdictionally barred. She noted that this was consistent with Mr Dirkis’s own stated views that his employment was not award or agreement covered. In these circumstances she was not persuaded that the alleged misrepresentation was an acceptable explanation for the delay. 15 We see no error in her conclusion.
[46] The FW Act provides that the FWC may only allow a further period to lodge an application if "exceptional circumstances" exist, taking into account the five nominated criteria set out in the FW Act. The principles are well established and set out in Nulty v Blue Star Group 16In 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.”
[47] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. 17 The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.18 Ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.19
[48] The FW Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the FWC have referred to an “acceptable” or “reasonable” or “credible” explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment, whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour. 20
[49] While the reallocation of the UD Application and COVID lockdowns no doubt impacted on the length of the delay in lodging the GP Application they are not the reason for the delay. The reason for the delay was correctly identified by the Deputy President as Mr Dirkis’ decision to pursue the UD Application until the determination of the appeal.
[50] We are satisfied that the Deputy President considered the relevant circumstances and that it was open to her to make the finding that Mr Dirkis’s decision to pursue the UD Application to the determination of the appeal was not an exceptional circumstance.
[51] In the third ground of appeal Mr Dirkis contends that the Deputy President improperly exercised her power by taking into account irrelevant considerations and failing to take into account relevant considerations, being ‘statistical data’ contained in submissions that were not tested by way of evidence. The statistical data that Mr Dirkis refers to is submissions made by SOS recruitment that it was not statistically uncommon for unfair dismissal applications to fail for want of jurisdiction.
[52] The absence of any reference to this data in the decision suggests that it was not evidence to which the Deputy President attached significant weight. We are satisfied that reasons set out the Deputy President’s written decision do form valid grounds for refusing the application for an extension of time.
[53] Finally, Mr Dirkis contends that the Deputy President should have given him an opportunity to amend his application to allow him to make an application pursuant to s.372 of the FW Act.
[54] The FWC is empowered under s.586 of the FW Act to amend an application or other document relating to a matter before the FWC on terms that it considers appropriate or to waive irregularity in a form or manner in which an application is made to the FWC provided that the amendment is not substantial and does not do injustice to the other party. The power contained in s.586 cannot be invoked to cure an error of substance or to fundamentally change the nature of an application. 21
[55] As noted by the Full Bench in Peter Ioannou v Northern Belting Serices Pty Ltd: 22
"Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.
… Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.
[56] There is no evidence that Mr Dirkis made such an application to the Deputy President and, for the reasons above, even if he had, we are not satisfied that it was open to her to allow such an amendment.
Permission to Appeal
[57] Having considered Mr Dirkis’ submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case. It is clear that the basis on which the Deputy President reached her Decision discloses an orthodox approach to Mr Dirkis’ application for an extension of time to file the GP Application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence before her. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1) of the FW Act that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[58] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.604(2) of the FW Act.
[59] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr P Dirkis, appeared on his own behalf
Ms S Masters for the first respondent
Mr M Kellock, counsel for the second, third, fourth and fifth respondent
Mr P Nicolarakis, appeared on his own behalf
Hearing details:
2021.
Telephone hearing.
8 June.
Printed by authority of the Commonwealth Government Printer
<PR730565>
1 Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment; The Commonwealth of Australia (as represented by the Department of Veterans’ Affairs); Stephen Maddocks; Susan Amzi; Carol Lehmensich; Dr Paul Nicolarakis [2021] FWC 2163.
2 [2021] FWC 2163 at [29].
3 [2021] FWC 2163 at [33]
4 [2021] FWC 2163 at [38]
5 [2021] FWC 2163 at [44].
6 [2021] FWC 2163 at [47].
7 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
8 O’Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
11 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
12 Wan v AIRC (2001) 116 FCR 481 at [30].
13 Warrell v Walton (2013) 233 IR 335, 341 [22], Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48].
14 [2020] FWCFB 6388 at [27].
15 [2021] FWC 2163 at [29].
16 [2011] FWAFB 975
17 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [38].
18 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].
19 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters (2018) 273 IR 156 at [39].
21 Ioannou v Northern Belting Serices Pty Ltd (2014) FWCFB 660 at [17], Hayes v ALDI Foods P/L as General Partner of ALDI Stores (A Limited Partnership) (2017) FWC 2369.
22 Ibid [21].
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