Qingchun Wang v RSL Care RNDS Limited
[2025] FWC 1711
•23 JUNE 2025
| [2025] FWC 1711 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Qingchun Wang
v
RSL Care RNDS Limited
(C2025/3251)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 23 JUNE 2025 |
Application to deal with contraventions involving dismissal – applicant dismissed for poor work performance - application filed 8 days out of time – request for an extension of time – language barrier in and of itself does not give rise to exceptional circumstances – language barrier does not explain the applicant’s delay in filing her application - no exceptional circumstances – general protections application dismissed.
On 19 April 2025, Ms Qingchun Wang (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act), alleging that she was dismissed by RSL Care RNDS Limited t/a Bolton Clarke (Respondent) in contravention of Part 3-1 of the Act.
The Respondent operates a residential aged care facility. The Respondent dismissed the Applicant for poor work performance (as an Assistant in Nursing) during her probationary period of employment. It paid the Applicant one week’s wages in lieu of notice so as to cease her employment immediately.[1] The Respondent’s position in this regard is as follows:
“[The Respondent] determined that the Applicant’s performance in most respects was poor.” “… the Applicant’s lacklustre performance demonstrated [she] was not suitable for ongoing employment [in the aged care facility].”[2]
Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s 366(2) of the Act).
It is not in dispute that the Applicant was dismissed on 21 March 2025. The Applicant should have lodged her Application by 11 April 2025. The Application was instead lodged on 19 April 2025, being 8 days past the 21-day statutory time limit.
This matter was allocated to my Chambers on 12 May 2025. Directions were issued on 13 May 2025 to program the matter to hear the Applicant’s request for an extension of time. At the hearing, the Applicant appeared for herself with the assistance of a Mandarin interpreter, and Mr Darren Gardner, Partner, Bartier Perry lawyers, appeared with permission for the Respondent.[3]
Legal Principles
Granting an extension of time requires the Commission to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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.
[14] Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) is not an exceptional circumstance...”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” (emphasis added).
The matters the Commission needs to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are set out under s.366(2) of the Act, which reads:
366 Time for application
… (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.
Each of the individual matters under s.366(2) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[4]
In Mohammed Ayub v NSW Trains,[5] a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
It is well settled that the statutory words “have regard to” or “take into account” (as used in s.366(2) of the Act) require the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel:[6]
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v Ward [1961] YR 632, at 634.”
Reasons for delay[7]
On the criteria of reason for delay, I adopt the following principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group (Bianca Mamo):[8]
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9] An Applicant need not provide reasons for the entire period of a delay. Depending upon all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[10] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21-day period, albeit circumstances arising prior to the delay may be relevant.[11]
In Bianca Mamo, Deputy President Easton also outlined how issues associated with illness (including mental illness) and/or associated incapacity are to be considered when they are put forward as reasons for the delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from the treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
[25] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
In summary, the Applicant contends (as her reasons for delay) that:
a) the sudden termination of her primary job forced her to take every available shift at her other job/s. She says it followed that the demands of this extra work, combined with the stress of job searching, and the shock of her dismissal, left her physically exhausted and/or mentally unstable, such that she was unable to properly research or file her Application within the statutory timeframe;[12]
b) she has a language barrier;
c) she had a lack of access to payroll information; and
d) she feared being blacklisted (by the Respondent, or other employers) if she moved to challenge her dismissal by filing her Application with the Commission.
Physical/Mental Incapacity
The Applicant did not rely upon any evidence, medical or otherwise, to support her contentions as to her absence of physical and/or mental capacity prior to filing her Application. I concur with the Respondent that ‘stress, shock, confusion and similar conditions are ordinary responses to the loss the employment’.[13]
Increase in work hours at other jobs
The Respondent highlights that the Applicant’s asserted increase in working hours only identifies her as working up to a single fulltime role (i.e. she has been working around 38 hours per week or 76 hours per fortnight (in total) post her dismissal). It also points out that the Applicant’s work commute (or the time taken to commute to/from work) adds nothing to the Applicant’s reasons for delay (i.e. everyone has a work commute). As to the Applicant applying for new jobs, and seeking out other work opportunities, whilst managing household duties and domestic affairs, the Respondent notes the obvious – these are ordinary and routine matters.
Language barrier
The Applicant submitted that because she is not a native English speaker, she experienced cultural/language barriers that contributed to the delay in the filing of her Application. I note that the Applicant has studied in Australia (undertaking courses in English), and agrees that she speaks basic English.[14]
The Respondent points out that the Applicant has provided no evidence of her actual language barrier, and has simply attached a Chinese passport that expired 7 years ago.[15] The cross-examination of the Applicant in this regard[16] was to the following effect:
Mr Gardner:
And at page 60 of the court book, you attach a foreign passport, don't you?
Applicant:
Yeah.
Mr Gardner:
And that foreign passport was issued by the People's Republic of China?
Applicant:
Yes.
Mr Gardner:
That passport expired about seven years ago, didn't it?
Applicant:
Yes.
Mr Gardner:
Now, you were born in Shandong, China. So is your native language the Jinan dialect?
Applicant:
I don't know what you mean. What dialect - dialogue? I speak Chinese, but I don't know what you say. What do you say?
Mr Gardner:
Jilu Mandarin?
Applicant:
Yeah, Mandarin.
Mr Gardner:
And you don't mention this in the material filed in the Commission, but you also obtained a degree in law from Shandong University in 2008, didn't you?
Applicant:
Yeah. Is this relative to my case?
Mr Gardner:
Yes. So in addition to your law degree - and you don't mention this in documents filed, but didn't you also attain further postgraduate qualifications in Sydney, Australia?
Applicant:
The law degree I get in China, but China law and Australia law is total different.
Mr Gardner:
Yes. I'm asking you now about postgraduate qualifications in Sydney, Australia. You have further qualifications you attained in Australia, don't you?
Applicant:
After coming to Australia, I couldn't attend the law course because my English problem. That's why I studied the certificate and the diploma course in Australia.
Mr Gardner:
So in 2011, you obtained a diploma in graphic design?
Applicant:
Yeah.
Mr Gardner:
In 2012, a diploma in accounting?
Applicant:
Yeah.
Mr Gardner:
In 2012, a diploma in management?
Applicant:
Yeah, roughly, yeah.
Mr Gardner:
And all studied in the English language?
Applicant:
Yes.
***
Mr Gardner:
Yes. All right. But in 2016, you managed to become - or prior to 2016, you managed to become an Australian citizen somehow, didn't you?
Applicant:
Yeah.
***
Mr Gardner:
And you've just mentioned that in aged care, you need to be familiar with English because of the work where you need to speak to many people when you speak English. That's correct, is it not?
Applicant:
That’s correct.
***
Mr Gardner:
And did you discover the existence of the Fair Work Commission by doing a quick search on the internet using your phone or computer?
Applicant:
Yes.
The Respondent also highlights that information on the Commission’s website (in relation to termination of employment) is available in translated form, including Mandarin (the Applicant’s native language). Under cross-examination, the Applicant denied being aware of any fact sheets available on the Commission’s website in translated form.[17] While I do not question the Applicant’s credibility in this regard, the ‘availability’ of, or free access to, such translated form documents is not to be disregarded.
The Applicant has not identified any specific events (arising in the lead up to her filing her Application) as examples of her language barrier causing a delay.
The fact that an individual may have a language barrier is not in and of itself unusual, uncommon, or exceptional (i.e. language barriers exist in all countries). The same applies to persons to whom English is not their first (or even second) language. What matters is the individual’s competence in English, and how, by reference to probative evidence, any absence of competence in English actually caused a delay. Whilst it may be acknowledged that the Applicant’s spoken English at the hearing was not proficient, and she required the assistance of an interpreter, I do not accept (on the evidence) that the Applicant’s delay is to be reasonably or credibly explained (or otherwise justified) by her language barrier (i.e. on its own, or in combination with the Applicant’s other reasons for delay).
Access to payslips
The Applicant submitted that her lack of access to the Human Force Systems (the Respondent’s payroll portal) on 22 March 2025 is a further reason for her delay. I concur with the Respondent’s submissions that “access to a payroll system, and any payslips, are not required to lodge a general protections claim. It was not necessary and did not prevent her from lodging.”[18] The Applicant was aware of her dismissal on the date that it occurred. Nothing needed to be confirmed by, or resolved with, the Respondent’s payroll for the Applicant to file her Application.
Fear of blacklisting
Finally, the Applicant submits that she feared being ‘blacklisted’ if she challenged her dismissal, and that the Respondent’s legal teams ‘prevented’ her from filing on time. I concur with the Respondent that this argument is vague, confusing,[19] and without any basis in evidence.
Conclusion on reason for delay
I concur with the Respondent in finding that there is a real absence of evidence addressing why the Applicant was unable to file her Application by the correct deadline (19 April 2025), but then 8 days thereafter, was suddenly able to do so. The Applicant has simply not explained how her circumstances changed.
I find that the reasons for delay (individually or combined) put forward by the Applicant in this case are not reasonable and/or credible explanations in the sense that they adequately explain or otherwise justify her delay. The Applicant’s reasons for delay in this case therefore do not weigh in favour of a finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute her dismissal[20]
There is no evidence before me that the Applicant took any action to dispute her dismissal prior to filing her Application. I therefore treat this criterion as a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Prejudice[21]
There is no evidence before me to suggest that the Respondent has or will suffer any material prejudice as a result of the delay by the Applicant in the filing her Application. The absence of prejudice to a respondent in an out of time case is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to the existence of exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made).[22] I treat this criterion as a neutral consideration in this case.
Merits[23]
Substantive evidence as to the merits of the Applicant’s case, and the Respondent’s defence, is not before me.
The principles stated Kyvelos v Champion Socks Pty Ltd[24] (Kyvelos), albeit in relation to a predecessor of the Act, still remains good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[25]
In Kornicki v Telstra-Network Technology Group,[26] the Full Bench of the Australian Industrial Relations 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 Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. 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.”
The Respondent submits that the Applicant’s substantive case, as far as it is expressed in relation to merit, raises arguments suitable for the unfair dismissal jurisdiction of the Commission, rather than the general protections jurisdiction. These include references (in the Applicant’s Form F8)[27] to invalid reasons for termination and procedural fairness, which are repeated in the Applicant’s Outline of Submissions.[28]
The scope of the Applicant’s case on the merits is outlined in her Form F8.[29] She relies upon racial discrimination (under s.351 of the Act) in relation to rostering (not dismissal), and says that she raised a workplace complaint about alleged unpaid wages (which she says was one of the reasons for her dismissal).
Whilst the Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant, the Applicant’s case in this matter (on its face) is weak. The Applicant’s allegation as to the Respondent’s purported contravention of s.351 of the Act (discrimination) does not allege (other than by ticking the box for same) that a reason for her dismissal was because of her race, and does not identify any basis upon which the Applicant was treated differently (for example, by comparison to other employees of the Respondent). Further, the Applicant’s allegation extends, at its highest, to the rostering of shifts, which she also says constitutes a contractual breach. The Applicant’s claim that she was dismissed for making a workplace complaint does not logically flow from the undisputed facts as to her dismissal. The Applicant’s pay was adjusted to reflect the day of orientation/training that she undertook (which was the basis of her complaint for non-payment).[30] Further, the correlation between this event, and the Applicant’s dismissal (which the Respondent says was for the Applicant failing her probationary employment),[31] is barely tenable (untested as it is).
All in all, I treat merits of the Application as no more than a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[32]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[33] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criterion weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[34]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence “exceptional circumstances” in this case as that term has been described or defined in Nulty[35]. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 19 April 2025 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Qingchun Wang, appeared for herself.
Mr Darren Gardner, Partner, Bartier Perry lawyers, appeared with permission for the Respondent (RSL Care RNDS Limited).
[1] Digital Hearing or Court Book (CB), p.28.
[2] Ibid, p.52.
[3] Transcript, PN3-PN43.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[5] [2016] FWCFB 5500.
[6] (1964) 38 ALJR 293, at 301.
[7] Section 366(2)(a) of the Fair Work Act 2009 (Act).
[8] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[2021] FWC 3903.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[10] Ibid, at [40].
[11] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[12] Applicant’s Outline of Submissions dated 29 May 2025; CB, p.53. The Applicant submits that she had to take on more shifts in her alternative jobs after the loss of her primary employment with the Respondent, causing her working hours to increase from approximately 57.25 hours per fortnight to approximately 61-74.75 hours per fortnight (with longer work commute times). By way of evidence, the Applicant annexed screenshots of what appear to be work shifts (for work not undertaken at the Respondent company) CB, pp.56-58. The Applicant also states that her commute to her shifts exceeded approximately 2 hours per day. The Applicant further submits that she applied for several jobs after her termination, and annexes a screenshot of a list of 28 jobs she applied for (CB, p.29). In addition, the Applicant contends that she was responsible for managing household responsibilities during the relevant period.
[13] Respondent’s Outline of Submissions dated 27 May 2025, at [16]; CB, p.69.
[14] Transcript PN240.
[15] Ibid, PN125, and PN163-PN181.
[16] Ibid.
[17] Ibid, PN188.
[18] Respondent’s Outline of Submissions dated 27 May 2025, at [24]; CB, p.71.
[19] Ibid, at [26], CB, p.71.
[20] Section 366(2)(b) of the Act.
[21] Section 366(2)(c) of the Act.
[22] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[23] Section 366(2)(d) of the Act.
[24] (1995) 67 IR 298.
[25] Ibid, at 299 to 300.
[26] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[27] Applicant’s Form F8 Application; CB, p.20.
[28] Applicant’s Outline of Submissions; CB, p.55.
[29] See also, CB, pp.8 to 10, and 24.
[30] CB, p.34.
[31] Ibid, p.37 – the Applicant signed a contract of employment expressly providing that her employment could be dismissed during her six month probation period on only one week’s notice.
[32] Section 366(2)(e) of the Act.
[33] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37].
[34] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[35] [2011] FWAFB 975, at [13].
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