Rebecca Eunson v Eworks Employment Solutions

[2018] FWC 3400

[2018] FWC 3400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Eunson
v
Eworks Employment Solutions
(U2018/3961)

COMMISSIONER WILSON MELBOURNE, 13 JUNE 2018

Application for an unfair dismissal remedy.

[1] This matter concerns an application made by Ms Rebecca Eunson alleging unfair dismissal against her former employer, Eworks Employment Solutions (referred to in this decision as Eworks). Ms Eunson’s dismissal took effect on Friday, 23 March 2018 and her unfair dismissal application was received in the Fair Work Commission on Monday, 16 April 2018.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Ms Eunson’s application was made outside of the statutory time limit, with it having been made three days after the expiry of the 21 day time period allowed for by the Act.

[3] Eworks object to the Commission granting an extension of time for the making of Ms Eunson’s application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Ms Eunson at the hearing. In the hearing I conducted for this matter, Ms Eunson appeared on her own behalf and Eworks was represented by its paid agent, Paul Maguire. Mr Maguire was granted permission by me to represent his client pursuant to the provisions of s.596(2)(a) of the Act (relating to the efficiency that may be brought to the matter, taking into account its complexity).

BACKGROUND

[6] Ms Eunson was employed by Eworks from 28 August 2017 in the capacity of Training and Placement Officer. The company operates labour market assistance programs from Yarrawonga in regional Victoria.

[7] Ms Eunson’s employment continued until 23 March 2018 and was terminated following a jobseeker lodging a complaint with Eworks a few days previously in which the client had alleged Ms Eunson had breached their privacy and confidentiality. The material before the Commission indicates that the complaint is said to have been investigated by Eworks and then discussed in a disciplinary meeting. While the accuracy of those matters and the underlying allegations are contested by Ms Eunson, the circumstances lead to Ms Eunson's termination of employment on Friday, 23 March 2018 which was confirmed to her in a letter sent on Monday, 26 March 2018.

[8] On the evening of 26 March 2018 Ms Eunson sent a letter to Eworks’ Chief Executive Officer Julie-Anne Clark expressing her disappointment and concern about her dismissal, as well as raising a complaint that she had recently found it difficult to work with a newly appointed Site Manager whom she accused of harassment and bullying. In the same correspondence Ms Eunson expressed views justifying her conduct; referring to client satisfaction; and that she felt “utterly shattered” about the complaint that had been made and that she had been unable to defend herself with her employment being terminated “without thorough investigation. I would like to inform you that I will be investigating my rights as an employee through Fair Work Australia”. 3

[9] Ms Clarke acknowledged receipt of the correspondence on 27 March 2018 and advised that in accordance with policy and procedure she would consult with Human Resources staff and provide Ms Eunson with a response by the close of business on Thursday that week. 4

[10] Also on 27 March 2018 Ms Eunson was provided with an Employment Separation Certificate and the letter of termination referred to above. The same communication gave Ms Eunson access to the Eworks Employee Assistance Provider for up to three months after her termination. 5 Ms Eunson responded to the correspondence by defending her situation saying that “I did not and do not admit to breaching this clients confidentiality” and that;

“I would also like Eworks to reconsider the reason for termination stated on the separation certificate and withholding in lieu of notice payment as misconduct is not suitable and will not be excepted (sic)”. 6

[11] After receiving this correspondence the firm’s Human Resources Coordinator, Tracy Gillies, advised Ms Eunson on 29 March 2018 that the payroll was being processed that day and that she should receive termination payment sometime later on the same day.

[12] Also on 29 March 2018 Ms Clarke responded to the earlier correspondence from Ms Eunson contesting her dismissal with Ms Clarke advising that there was no evidence to support the claims of harassment that Ms Eunson put forward; and that the investigation and dismissal “process was appropriate and reasonable management action followed given your performance”. 7 Ms Clarke also expressed the view that while she considered it was unfortunate that Ms Eunson's employment had ended in the way it had that she was satisfied that her treatment by the organisation was fair and reasonable. Ms Eunson’s evidence was that until she received Ms Clarke’s email she had thoughts the company would listen to her side of the story and perhaps change its views.

[13] Ms Eunson reports some significant difficulties dealing with the dismissal after it occurred. On the day of dismissal she felt upset and shocked and found it hard to cope with the circumstance on that day. In particular she felt that she had not been given a fair chance to defend herself.

[14] Ms Eunson’s evidence is that the emotional distress she experienced following her dismissal continued throughout the period before lodging her unfair dismissal application, with her putting forward that her state of mind was very poor at the time and that she was significantly emotionally traumatised. She took advantage of the company's Employee Assistance Provider and sought counselling from the firm. Arising from this situation she attended a psychologist on at least three occasions, who provided her with a medical diagnosis as well as helping her with strategies to deal with the distress she was experiencing. In all, she found the circumstances of her dismissal quite distressing emotionally, as well as having significant financial effects and leaving her concerned that her integrity had been questioned. In response to questions as to whether these things amounted to her being incapacitated, Ms Eunson expressed the view that she was quite depressed in the time following her dismissal and that in the period between her dismissal and the expiry of the time for making an application she was not of a sound mind to be defending herself. She was unable to leave the house or submit job applications during the period.

[15] Ms Eunson's evidence includes that in addition to the correspondence she engaged in with Eworks, on Thursday, 29 March 2018 she contacted a legal firm she had found on Google, Anderson Gray, and explained her situation to them. She reported that she made contact with the lawyers because she was still quite traumatised at that time and she was not sure how to defend herself. She forwarded to them the information they had requested, including the termination letter and the Employment Separation Certificate. Ms Eunson says that she trusted in the legal firm and awaited their advice.

[16] Material before the Commission submitted by Ms Eunson indicates that after speaking with the lawyers via telephone on Thursday, 29 March 2018 acknowledgment of receipt of her materials in written form did not occur until Monday 9 April 2018 when the lawyers indicated they would review Ms Eunson’s application sometime early that week and get back to her. It is unclear precisely when Ms Eunson's material may have been provided to the lawyers. Ms Eunson’s evidence about her contact with the firm includes that she had an initial conversation with a lawyer in the firm; that she provided the additional material they requested; and that she then awaited their advice on the matter.

[17] The lawyers, Anderson Gray, responded to Ms Eunson in the afternoon of Friday, 13 April 2018, which was also the last day on which an unfair dismissal application could have been made for it to be in time. Ms Eunson’s evidence is that she received the email late on that day. She saw the email at about 4:15 PM and spoke to the lawyer who had sent it shortly after, at about 4:30 PM. The substance of the lawyer’s communication was that he had “reviewed and discussed the material and instructions that you provided” with his principal, and it was the firm’s feelings that they would be unable to assist her, referring Ms Eunson to another firm which it was said, somewhat enigmatically by the Anderson Gray lawyer, “may be able to take on your claim for Mondays conciliation". 8 Ms Eunson is not aware of what the latter statement was in reference to, for the reason that there was no conciliation listed in the matter at that time.

[18] Ms Eunson's evidence about the conversation she then had with the lawyer about his letter is that he informed her that with the prospect of the firm’s retention being on the basis of a "no-win/no-fee" arrangement, her circumstance probably meant it was not economical for the firm to assist her with the likely gain to be had from an action being lower than the costs the firm would incur.

[19] Ms Eunson's evidence is that it was only around the time of this conversation that she became aware there was a 21 day time limit for the making of an unfair dismissal application. Her evidence is firmly that the lawyer she spoke with told her that the last day for the making of her unfair dismissal application for it to be within time was on the coming Monday, 16 April 2018.

[20] Having received the firm’s advice Ms Eunson then prepared an application for unfair dismissal remedy to the Commission on her own, in conjunction with her husband, with the application being lodged at 4:27 PM on Monday, 16 April 2018.

LEGISLATION

[21] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;

“394 Application for unfair dismissal remedy

(1) ….

(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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[22] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has 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”. 9

[23] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 10

[24] In considering whether an extension of time should be granted to Ms Eunson, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[25] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 11 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.12 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.13 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.14

[26] The “delay” to be considered in this case is the period it took after the prescribed period for Ms Eunson to lodge her application. As previously referred to, that was a period of three days; the application should have been lodged on Friday, 13 April 2018, when it was actually lodged on Monday, 16 April 2018. Ms Eunson puts forward four factors as explaining why the application came to be made three days out of time. Those factors were her distress following being dismissed and its consequential effect upon her state of mind; that she waited some time before consulting lawyers as a result of her challenge to the dismissal; that she was given incorrect advice by the lawyer, to the effect that the time period ended on 16 April 2018 when it actually ended on 13 April 2018; and finally that she was not aware of the Act time limit for the making of an unfair dismissal application until late in the afternoon of Friday, 13 March 2018. Although it is the case that no single one of those factors caused the application to be late, it may be said that the combination of those factors are Ms Eunson’s explanation for the delay in making an application to the Commission.

[27] Overall I do not find these factors to be an exceptional circumstance which would militate towards the granting of an extension of time for the making of Ms Eunson’s application.

[28] The factors of Ms Eunson’s distress and her lack of knowledge about there being a time limit, both individually and collectively, are best regarded as relatively ordinary factors which do not enliven the need for exceptional circumstances.

[29] The matter of Ms Eunson’s shock and distress, while no doubt real, has not been established as being a significant or total debilitation on her part to take action about her dismissal. While Ms Eunson’s evidence in this regard is that her state of mind was such that she was unable to leave her house or submit job applications during the period between her dismissal and the date of making the application, there is no direct evidence before the Commission that she was certified as being medically incapable of performing those tasks. In that regard, noting that no medical certificates were provided to the Commission, although Ms Eunson suggested towards the end of the hearing that she may be able to obtain medical certificates if they were needed, my consideration is that something more than a medical certificate saying that she was unfit for work would have been required. There is nothing exceptional in a person providing medical certificates certifying ordinary illness or inability to work. Those matters, in and of themselves are not exceptional and would be unlikely to lead to an extension of time, even if those matters were related to matters of anxiety and distress. On their own, the matters are ordinary and not exceptional; a certificate that one is not fit for work is not tantamount to a certification that one is unable to conduct the whole of ones affairs, or to attend to the exigencies of life. In any event, and despite her reported state of mind, Ms Eunson was able to undertake certain actions in relation to her dismissal; namely engaging in correspondence on several occasions with her former employer in the week immediately after her dismissal, and then researching and speaking with lawyers about what could be done about the circumstance in the following weeks.

[30] In relation to Ms Eunson’s lack of knowledge about there being a time-limit or to what it may be, it must be noted that the Commission has held on many occasions that mere ignorance of the statutory time limit is not an exceptional circumstance. 15

[31] The challenge which Ms Eunson made to her dismissal in the week after her termination also does not rise to being an exceptional circumstance. It was quite clear that within a week of being dismissed that her former employer was not going to entertain a reconsideration of its decision. As a result this is not a circumstance in which a prolonged engagement with a former employer where discussions surrounding the terms of a return to work might have caused a delay in filing an application.

[32] The claimed representative error on the part of the lawyers Ms Eunson contacted is also not an exceptional circumstance. The principles usually adopted by the Commission in respect of considerations of representative error are well-established and include;

“Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital 16 remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency17 in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 18 (references from original)

[33] Ms Eunson gave evidence to the effect that after making her application to the Commission and being informed that the application required an extension of time she made contact with the lawyer at Anderson Gray with whom she had initially spoken. She asked him to confirm in writing to her that his advice had been that the application could be made on Monday, 16 April 2018. Ms Eunson’s evidence is that the lawyer concerned refused to do that.

[34] In the present circumstances it may be found that Ms Eunson contacted the lawyer during early April and provided him with information in the form of a short email, the terms of which are not before the Commission, and attached to the email her letter of termination and the employment separation certificate she had been provided with. The lawyer acknowledged receipt of that material on 9 April 2018 and undertook to review the material and discuss it with his principal. The context of that consideration was whether the firm was prepared to assist Ms Eunson on the basis of a “no-win/no-fee” arrangement. After undertaking consideration of the materials provided the lawyer returned to Ms Eunson via email at some stage on the afternoon of Friday, 13 April 2018, with Ms Eunson not seeing his email until around 4:15 PM that day and then subsequently contacting him via telephone at around 4:30 PM on the subject of his correspondence. The subject of these communications were within the context of the lawyer advising that his firm felt that it was unable to assist Ms Eunson, with that meaning the firm was unwilling to proceed to give her advice or to act for her on the basis of a “no-win/no-fee” retainer. It is entirely probable that the lawyer in fact did say to Ms Eunson that she had until the end of Monday, 16 April 2018 to make her unfair dismissal application to the Commission for it to be within time.

[35] A question arises whether this can be accepted as representational error within the meaning ordinarily attributed to the term. I do not find that it is. The totality of the evidence before me leads to the view that Anderson Gray was not retained at any stage to act on behalf of Ms Eunson and that instead both she and the firm were in preliminary commercial discussions about the feasibility of retaining the firm to act for her. While the firm may well have made a mistake in telling Ms Eunson that she had more time to make her application, which Ms Eunson relied upon, the arrangement between the two was still at that time only a preliminary arrangement. When Ms Eunson received the short reversion from Anderson Gray on 13 April 2018 a whole week had gone by with no contact from the firm about their possible arrangement and when the firm did return to her its advice consisted of six short sentences, none of which dealt with her legal rights or how they may be actioned.

[36] As a result, the view has been formed by me that the discussions Ms Eunson had with Anderson Gray only ever got to the point of a preliminary hypothetical of future involvement. There was always going to be a risk that the firm came back to her and said what it did. The error to which Ms Eunson points is the erroneous advice that she had more time to make her application than she actually did. That error may point to a lack of diligence on the part of the lawyer concerned, but in and of itself consideration of the factor does not fall decisively in favour of Ms Eunson. At the time she was sent the response by the lawyers she was still acting for herself and did not know that there even was a time-limit. Therefore, it must be presumed that she was merely ignorant of the statutory time-limit, which as stated previously, is of itself no exceptional circumstance.

[37] Accordingly, my assessment of the factors relevant to this criterion does not resolve in favour of Ms Eunson in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[38] On the basis of the evidence before me, I am satisfied that Ms Eunson first became aware of the termination of her employment on Friday 23 March 2018. This is therefore not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

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

[39] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 19

[40] In relation to this criterion Ms Eunson relies upon the correspondence she had with Ms Clarke and others within Eworks in the week after her termination to demonstrate that she was actively contesting her dismissal. Notwithstanding these steps, Ms Clarke had ruled out the possibility of reviewing Ms Eunson’s termination by Thursday 29 March 2018. While it may be said as a consequence of this correspondence that Ms Eunson had actively contested her termination, that contest concluded at the time Ms Clarke came back to her on 29 March 2018. It was Ms Eunson’s evidence that because of Ms Clarke’s closed response that she approached lawyers on the subject of her dismissal.

[41] As a result, overall, my consideration of this criterion does not resolve in Ms Eunson's favour.

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

[42] The delay in the filing of the application is three days. The Respondent has not directly put forward that it would be prejudiced by allowing an extension of time for the making Ms Eunson’ application.

[43] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 20

[44] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted, therefore this is a neutral factor in my consideration.

5. The merits of the application

[45] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[46] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted;

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). 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 pursuant to s.170CE(8). 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. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 21

[47] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 22

[48] The merits of the application to which Ms Eunson refers are that the allegations put against her about breaching a client’s confidentiality are untrue and that her conduct cannot be viewed as misconduct which is the reason given by Eworks for Ms Eunson’s termination of employment. In her correspondence to Ms Gillies, the Human Resources Officer and to Ms Clarke, the Chief Executive Officer, Ms Eunson also relates concerns about the opportunity she was given to defend the allegations against her as well as the procedures employed by Eworks to investigate and then determine the allegations made against her.

[49] There is insufficient material presently before the Commission to draw any conclusions about the prospects of success of these arguments. It is therefore a neutral factor in my consideration of the matter of an extension of time.

6. Fairness as between the person and other persons in a similar position

[50] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 23 In relation to considerations of fairness with unfair dismissal applicants generally, there are no factors before me that would cause a finding that dismissal of Ms Eunson’s application would lead to differential treatment compared with applicants generally. In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.24

[51] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Eunson.

[52] An Order dismissing Ms Eunson's application for unfair dismissal remedy is issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Ms Rebecca Eunson on her own behalf.

Mr Paul Maguire for the Respondent.

Hearing details:

2018.

Melbourne (by telephone;

1 June.

Printed by authority of the Commonwealth Government Printer

<PR607997>

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

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

 3   Exhibit A4, Applicant's Bundle of Documents, Attachment 5.

 4   Ibid.

 5   Ibid, Attachment 3.

 6   ibid.

 7   Exhibit R2, Respondent’s Bundle of Documents, Attachment 2.

 8   Exhibit A4, Attachment 4.

 9   Nulty v Blue Star Group, 2011, 203 IR 1 [13].

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

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

 13   Ibid, [40]

 14   Ibid, [41].

 15   Nulty v Blue Star Group, 2011, 203 IR 1, [14].

 16 (1997) 74 IR 413.

 17   Print Q0784.

 18   McConnell v A & PM Fornataro (t/as Tony’s Plumbing Service)[2011] FWAFB 466, 202 IR 59, [35].

 19   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

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

 21 (2000) Print T2421 [14].

 22   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

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

 24   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].