Rebecca Barton v Safe Places Community Services Limited T/A Safe Places for Children

[2020] FWC 2606

[2020] FWC 2606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rebecca Barton
v
Safe Places Community Services Limited T/A Safe Places for Children
(U2020/238)

COMMISSIONER HUNT BRISBANE, 19 MAY 2020

Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – unfair dismissal application dismissed.

[1] On 8 January 2020, Ms Rebecca Barton made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Safe Places Community Services Limited T/A Safe Places for Children (Safe Places) and the dismissal was harsh, unjust or unreasonable.

Background and jurisdictional objection

[2] Ms Barton commenced employment at Safe Places on 11 September 2017. It is agreed between the parties that Ms Barton was notified of her dismissal on 17 December 2019 and that it took effect on that date.

[3] In its Form F3 – Employer Response to Unfair Dismissal Application, Safe Places raised a jurisdictional objection in relation to Ms Barton’s application. It stated that the application was not filed until 8 January 2020, and therefore it had been filed one day outside the 21-day time limit.

[4] The matter was listed for conciliation before a Fair Work Commission (the Commission) staff conciliator, however the conciliation did not take place as Safe Places exercised its right to have the jurisdictional objection dealt with in the first instance.

[5] On 4 February 2020, the Associate to Vice President Catanzariti sent correspondence to Ms Barton outlining that the application was lodged one day outside the 21-day time limit within the Act, and she would be required to seek an extension of time for her application to proceed. Ms Barton was informed that the Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application in time. Ms Barton was invited to address the relevant criteria.

[6] On 11 February 2020, Ms Barton responded by email:

“Safe Places and I agree that my employment was terminated on the 17th of December 2019, due to the way the dismissal took place at 4:30pm in the afternoon I contacted the Fair Work ombudsman for advice on the process the following day (18th December). During my conversation with the ombudsman I was advised that the 21 days began the following day hence the application arriving 1 day late.

I would also like it taken into consideration the emotional and financial impact the termination employment took one week before Christmas shut down period as well as one of my children requiring multiple surgeries and hospitalisation for a severely broken arm within this time period. I can provide medical certificates if required and to provide proof of having very limited time to be able to complete the application and seek advice whilst my child was in and out of hospital.” 1

[7] The matter was allocated to me for hearing to determine whether a further period should be allowed for the application to be made, having regard to the considerations in s.394(3) of the Act. Directions were issued to both parties to file material and submissions relevant to the jurisdictional objection. Section 394(3) was appended to the Directions.

[8] The matter was listed for hearing before me on 1 April 2020 by telephone. Ms Barton appeared on her own behalf and gave evidence. Mr Troy McKernan, Industrial Relations Specialist, appeared on behalf of Safe Places.

The Legislative Framework

[9] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[10] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

Summary of evidence

[11] Safe Places is a not-for-profit organisation that provides young people with therapeutic support and supervision in a residential care setting. It operates in five states in Australia. Prior to her dismissal, Ms Barton was employed as a Case Manager.

[12] On 13 November 2017, Ms Barton completed a Youth Worker induction. On 23 September 2019, Mr Barton completed a Policy Declaration where she agreed she had access to Safe Places’ policies, and she agreed to abide by them.

[13] The Form F3 included a show cause letter dated 9 December 2019 to Ms Barton which stated, in part:

“On 21 November 2019 you attended the office and discussed the managing of an incident that occurred on the 22 October 2019 where a young person was escalated, and you managed this by physically removing the young person outside. This response to the management of a young person’s behaviours is not in line with the practice framework nor are Safe Places employees trained to respond to pain-based behaviours in this way. Further, this was not reported in line with Safe Places policies and procedures.

You have previously on the 15 May 2019, managed the escalated behaviour of the same young person by physically removing them outside.

SPFC treats matters such as this very seriously.”

[14] Regarding the meeting of 21 November 2019, Ms Barton’s evidence is that she had not been provided with notice of the meeting, and she was unaware what the meeting was about prior to her attending. It was only until she was in the meeting that she became aware that the meeting was to discuss an allegation that had been made against her. She also stated that she was not provided with sufficient time to find an appropriate support person of her choosing to attend the meeting with her, and instead, Safe Places selected a support person to attend with her.

[15] Ms Barton, Ms Melissa Hartwell, Area Manager, Mr McKernan, and Ms Melody Robinson, Quality and System Manager were in attendance.

[16] The show cause letter issued to Ms Barton on 9 December 2019 invited her to provide a response by 5:00 pm on 11 December 2019, noting that a meeting was scheduled on 13 December 2019 at 4:30 pm. The letter stated:

“The purpose of this meeting is to discuss your written response and anything arising out of your response.

We strongly encourage you to bring a support person with you to this meeting. The role of the support person is not to advocate on your behalf but be an emotional support.”

[17] Ms Barton provided a response on 11 December 2019, in which she admitted to the alleged conduct, including what she described as a mistake in not reporting the incident as per policy. She stated that it had not been an intentional disregard for policy, but an oversight as she thought that she had completed a report at the time.

[18] Ms Barton noted that the incident occurred after she had just returned from two weeks’ stress leave, and in mitigation, she sought Safe Places’ consideration of her increased workload, and what she described as a workload often beyond one person’s capacity. She considered at times there was little to no support, nor adequate time off. She requested consideration of her commitment to improve her overall performance, and stated that she would be willing to attend further training, should it be required.

[19] In a letter dated 17 December 2019, Safe Places outlined its finding, stating that it had taken into account Ms Barton’s written response dated 11 December 2019, her response provided in the meeting on 21 November 2019, and her performance history. The evidence before the Commission is not clear as to whether the proposed meeting of 13 December 2019 took place, however in the Form F3, Safe Places submitted that Ms Barton’s partner attended with her at the meeting where the show cause outcome was delivered.

[20] The letter of 17 December 2019 stated that Safe Places had decided to terminate Ms Barton’s employment effective 17 December 2019. The letter further stated that Ms Barton would be paid two weeks’ wages in lieu of notice, along with all accrued leave entitlements.

[21] It is not in dispute that Ms Barton’s employment was terminated on 17 December 2019. For Ms Barton to have made her application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 7 January 2020. The application has been made one day out of time.

[22] In addition to the material already filed by the parties, I took the parties during the hearing through the considerations the Commission must have in considering whether to exercise discretion to grant an extension of time.

Section 394(3)(a) – the Reason for the Delay

[23] Ms Barton submitted that the reasons for delay in bringing her application under s.394 of the Act were as follows:

(a) She had received advice that she had until the 8 January 2020 to lodge her unfair dismissal application;

(b) it was difficult to understand and seek information regarding the unfair dismissal process during the Christmas closure period; and

(c) her son was required to undergo surgery and attend hospital appointments.

[24] In Ms Barton’s oral evidence, she further submitted she had experienced an unfortunate series of events that were out of her control and took up her time.

[25] Ms Barton submitted that following her dismissal on 17 December 2019, she arrived home late in the evening. In her written submissions, Ms Barton stated that due to arriving home late, she was unable to contact the Fair Work Ombudsman (the Ombudsman) until the next day, being 18 December 2019. Ms Barton further stated in her written submissions that it was during her phone conversation with a helpline representative that she was advised she had until 8 January 2020 to bring her application.

[26] During the hearing, Ms Barton stated that on 19 December 2019 she downloaded the form for an unlawful dismissal (a Form F9 – Application for the Commission to deal with an unlawful termination dispute). Ms Barton completed this form, however as she did not quite understand the questions in the form, she contacted the Ombudsman by telephone on 7 January 2020. It was during this conversation that Ms Barton stated the Ombudsman advised she had completed the wrong form, and that she was required to complete a Form F2 – Unfair dismissal application.

[27] Ms Barton conceded in the hearing that prior to her discussion with the Ombudsman on 7 January 2020, she was aware of the 21-day time frame, and that was why she contacted the Ombudsman on 7 January 2020. Ms Barton stated that she was seeking advice before she lodged her application to ensure she had everything she needed.

[28] During the hearing, Ms Barton was asked by me whether the Ombudsman had advised her she was required to lodge her application by 8 January 2020 or whether she had calculated the date to be 8 January 2020. In the first instance, Ms Barton stated that “they”, in which I presume to be the Ombudsman, told her she had until 5:00 pm on 8 January 2020 to lodge her application for it to be within time. However, later in the hearing, after a short adjournment, Ms Barton stated that she had calculated the date herself to be 8 January 2020, and that she had “miscalculated” by calculating weeks as opposed to individual days.

[29] In cross-examination, it was put to Ms Barton that the conversation she had with an officer from the Ombudsman occurred on 18 December 2019. Mr Barton agreed to contacting the Ombudsman on 18 December 2019, however denied having a conversation with an officer of the Ombudsman; she stated that the conversation did not occur until 7 January 2020.

[30] I put it to Ms Barton that it would be very surprising if an officer of the Fair Work Ombudsman suggested to her that she had to lodge an application in by a 5:00pm deadline, regardless of the day of the week, especially given electronic lodgement. Ms Barton stated that this is what she had been advised.

[31] Ms Barton submitted that a further reason for delay was that her son was required to attend hospital appointments and underwent two operations. Following questions from myself during the hearing, it was established that during the 22-day period following her dismissal, Ms Barton attended with her son to hospital on the following days:

(a) 18 December 2019 (all day);

(b) 23 December 2019 (following the out-patient appointment, Ms Barton’s son was admitted for a second surgery that was conducted on 24 December 2019);

(c) 30 December 2019; and

(d) 6 January 2020.

[32] Evidence of the appointments, hospitalisation and x-ray scans were provided as evidence.

[33] In advancing her position, Ms Barton stated that the days in which she was not required to attend the hospital with her son, everything was closed due to the Christmas closure period. She stated that did not understand the Commission’s website and experienced difficulties to find someone to provide information over the Christmas period as no one was there to respond. I asked Ms Barton whether the information provided on the Commission’s website was not clear enough for an unrepresented party; Ms Barton responded that she did not understand the information.

[34] During the hearing I inquired of Ms Barton if she had been applying for other positions since her dismissal. Mr Barton’s evidence is that she had been applying for positions since January 2020, and the applications were completed by her late at night.

[35] I asked Ms Barton why it was that she brought her application on the last day she had calculated, being 8 January 2020, and not on 5, 6 or 7 January 2020? Ms Barton conceded that she had relied on 8 January 2020 as the correct date and she had miscalculated. Ms Barton also submitted that she was doing everything she could to put the correct paperwork together, while caring for her children and finding work.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[36] It is uncontested that Ms Barton became aware of the dismissal on 17 December 2019 and it took effect on that date.

Section 394(3)(c)- Any action taken by the person to dispute the dismissal

[37] It was submitted by Safe Places that Ms Barton did not take any action to dispute the dismissal. However, in its written submissions, it was acknowledged that upon being informed of her termination, Ms Barton stated, “You will be hearing from Fair Work”. During the hearing, Ms Barton agreed that she said this on 17 December 2019.

Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[38] During the hearing Ms Barton submitted that there was no prejudice towards Safe Places, however noted that she did not understand how she could answer that question. It was submitted by Safe Places that this is a neutral consideration for the Commission.

Section 394(3)(e) – The merits of the application

[39] Ms Barton submitted that her application is not without merit.

[40] It was submitted by Safe Places that there was no merit to the application as Ms Barton had admitted to the conduct that amounted to breaches of Safe Place policies that caused her termination. In advancing its position, it was stated that Ms Barton was provided with a show cause letter, was given an opportunity to respond to the issues and had a support person with her at the termination meeting.

Section 394(3)(f) – Fairness as between the person and other person in a similar position

[41] The parties agreed that there is no person in a similar position to Ms Barton.

Applicable Case Law

[42] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd²where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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 time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[Endnotes not reproduced]

[43] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,³ a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers⁴ stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:⁵

“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” (original emphasis)

Consideration

Section 394(3)(a) - The reason for the delay

[44] The reason for delay asserted by Ms Barton is primarily that she was of the belief that her application could be properly filed up until 8 January 2020.

[45] As noted above, Ms Barton first contended that she had been advised by an officer of the Ombudsman that to lodge her application in time, it had to be lodged by 5:00 pm on 8 January 2020. During the hearing, I informed Ms Barton that I would have difficulty accepting such evidence, as the Fair Work Commission online lodgement portal allows applications to be made up until 11:59:59 on the 21st day after a dismissal, and there is no cut-off at 5:00 pm. However, Ms Barton later conceded that she had miscalculated the date her application was due.

[46] I accept that Ms Barton was required to attend hospital with her son, and that this was an unusual occurrence. However, Ms Barton was required to attend and offer support following surgery and appointments on only four days, as noted above, of the 21-day timeframe after the dismissal. Ms Barton’s son’s medical appointments during the period from her date of dismissal until when she made the application, whilst clearly distressing and unusual for her, do not provide an adequate explanation for even a large part of the period to which Ms Barton had available to bring an application. She was not entirely pre-occupied during this period of time with the attendance of her son at hospital and appointments.

[47] Further, Ms Barton’s evidence is that she capably applied for jobs during this period, albeit late at night.

[48] It appears to me that Ms Barton simply miscalculated the date on which the application had to be made and that is the explanation for the delay. Whilst I accept that Ms Barton at the time was exposed to a series of unfortunate circumstances, that merely provides an explanation for the miscalculation and perhaps an explanation for part of the delay. It does not provide an explanation for Ms Barton’s action to delay the application until the last day that she had incorrectly calculated.

[49] In line with the authority in Nulty, ignorance of the statutory time limit imposed by parliament is not an exceptional circumstance.

[50] I am not satisfied that Ms Barton has demonstrated exceptional circumstances for the period of the delay. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[51] This criteria is not a matter in dispute and so I found this a neutral consideration.

Section 394(3)(c)- Any action taken by the person to dispute the dismissal

[52] Any action taken by an employee to consent to the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 6

[53] I accept that Ms Barton took steps to dispute the grounds on which she had been dismissed by obtaining forms from the Commission’s website, completing the online eligibility quiz, reviewing information available on the website and contacting the Ombudsman. On her evidence, she obtained the Form F9 and Form F2 within the 21-day time limit. She did not, however, file the form(s) with the Commission within the 21-day time limit.

[54] I consider that this is a factor weighing in favour of the discretion to grant an extension of time.

Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[55] The delay of one day will not cause any prejudice to the employer. I consider that this is a neutral factor when considering whether to exercise the discretion to grant an extension.

Section 394(3)(e) – The merits of the application

[56] In the matter of Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:8

“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.”

[57] On the information presently before the commission, it is clear that there are factual disputes between the parties, especially regarding the show cause process.

[58] I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. I consider merit to be a neutral factor in this case.

Section 394(3)(f) – Fairness as between the person and other person in a similar position

[59] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd 9:

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[60] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time. 10 Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[61] I am not satisfied that the issue of fairness as between Ms Barton and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion

[62] Having considered all of the matters to which my attention is directed by the Act, I am

not satisfied there are exceptional circumstances which would warrant granting an extension to the statutory time limit. Ms Barton’s circumstances are not out of the ordinary course, unusual, special or uncommon.

[63] As Ms Barton has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.

[64] I order that the application be dismissed

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719462>

 1   Exhibit A3.

2 [2011] FWAFB 975.

3 [2018] FWCFB 901.

4 (2010) 197 IR 403 at [16]-[18].

5 [2018] FWCFB 901 at [38].

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

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Ibid.

 9   [2016] FWCFB 6963 at [41].

 10   See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.