Richard Davies v Programmed Turnpoint

[2020] FWC 3798

[2020] FWC 3798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Richard Davies
v
Programmed Turnpoint
(C2020/1805)

DEPUTY PRESIDENT YOUNG MELBOURNE, 20 JULY 2020

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Richard Davies under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] Although initially contested, it is ultimately conceded that the Respondent dismissed Mr Davies. The date of that dismissal is, however, disputed. Mr Davies says that he was dismissed on or about 11 November 2018. The Respondent says it dismissed Mr Davies on 9 January 2019. Mr Davies’ application was lodged on 24 March 2020. Accordingly, irrespective of whether Mr Davies was dismissed on or about 11 November 2018 or 9 January 2019, the application was not lodged within the 21 day period provided for in section 366(1) and is at least 418 days out of time. Mr Davies seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time. My finding as to the date of Mr Davies’ dismissal is set out below.

[3] On 16 April 2020, I issued directions for the parties to file materials and listed the matter for hearing at 4.00 pm AEST on 11 June 2020. Amended directions were issued on 7 May 2020 and materials were filed by the parties in accordance with those directions. In addition, at the direction of the Commission, the parties filed a statement of agreed facts on 10 June 2020 (Statement of Agreed Facts).

[4] On 11 June 2020 I conducted the proceeding by way of hearing by telephone. At the hearing Mr Ted Neaves appeared on behalf of Mr Davies pursuant to section 596 of the Act. Mr Neaves called Mr Davies to give evidence. Mr Mike Zoetbrood, Industrial Relations Manager, appeared on behalf of the Respondent.

Background

[5] Mr Davies commenced employment at the Mollymook Golf Club (Golf Club) as a Greenkeeper in 1984. 1 In March 2005 the Respondent took over the contract for management of the ground services at the Golf Club and Mr Davies commenced employment with the Respondent.2

[6] In October 2017 Mr Davies suffered a workplace shoulder injury 3 and subsequently underwent shoulder surgery.4 On or about 4 January 2018 Mr Davies returned to work on modified duties.5 On 22 June 2018 Mr Davies had non work-related bilateral knee surgery6 and was absent from the workplace until November 2018. Mr Davies sought to return to work in early November 20187 and was assessed by Dr Gordon Mill. Dr Mill’s report, dated 9 November 2018, assessed Mr Davies as fit to return to work, with modified duties.8

[7] On or about 11 November 2018 there was a telephone conversation between Mr Noseda, the General Manager of the Respondent and Mr Davies 9 (Telephone Conversation). Mr Davies says that in the Telephone Conversation Mr Noseda terminated his employment.10 The Respondent disputes this.11 Mr Davies did not return to the workplace thereafter. He was paid workers’ compensation payments from 14 November 2018.12 On 24 December 2018 Mr Davies’ wife telephoned Mr Noseda13 regarding the non-payment of Mr Davies’ accrued entitlements and requesting a separation certificate.14 Mr Noseda was on leave at that time.15 On 9 January 2019 Mrs Davies sent an email to Mr Noseda to “follow up” on her telephone call of 24 December 2018, requesting the separation certificate and payment of outstanding entitlements “due to the company ceasing [Mr Davies’] employment with Programmed Turnpoint in November 2018.”16 Mr Noseda provided the separation certificate on 9 January 2019. The separation certificate provides a termination date of 9 January 201917 and states “employee ceased work voluntarily”.18 Mr Davies was paid his accrued entitlements up to and including 11 January 2019.19

Date of dismissal

[8] Although Mr Davies had some confusion as to the precise date of the Telephone Conversation, his evidence was ultimately that Ms Noseda terminated his employment on or about 11 November 2018 20 in the Telephone Conversation.21 In his affidavit Mr Davies says that Mr Noseda called him and said words to the effect of “I am sorry it has to end like this but you cannot come back to work. It is not safe”, to which he replied,“is that it, after nearly 40 years?”22At hearing Mr Davies said that Mr Noseda told him in the Telephone Conversation that the Respondent could no longer employ him.23

[9] Although initially contested, the Respondent concedes that it dismissed Mr Davies 24 but says it arose through a series of miscommunications between Mr Davies, Mr Noseda and Mrs Davies.25 It says that the Telephone Conversation occurred on 13 November 2018, submitting that 11 November 2018 was a Sunday and the conversation would have unlikely occurred on a non-working day.26 It says that in the Telephone Conversation Mr Noseda advised Mr Davies that there were no safe duties for him to perform and advised him that if no alternative role or duties could be identified, his employment may end for reason of inability to fulfil the inherent requirements of the role.27 It says Mr Noseda was not authorised to terminate Mr Davies’ employment without the approval of the General Manager of Human Resources (GM HR).28 It says further there is no record of either Mr Noseda nor the GM HR authorising Mr Davies’ dismissal.29 It submits that the date upon which Mr Davies’ employment ended was 9 January 2019, being the date Mr Davies was provided with the separation certificate. It says this was the date the dismissal was communicated to Mr Davies and rely upon the comments of the Full Bench in Mohammed Ayub v NSW Trains.30 It also says that leave entitlements were accrued and paid until 11 January 2019.

[10] I consider it unlikely that the Telephone Conversation occurred on a non-working day, and therefore accept the Respondent’s submission that the Telephone Conversation occurred on 13 November 2018. I consider this is consistent with Mr Davies’ evidence that the Telephone Conversation occurred on or about 11 November 2018 and is also consistent with the commencement of Mr Davies’ workers’ compensation payments on 14 November 2018. As to the content of the Telephone Conversation, while the Respondent contests Mr Davies’ version of events, it did not call Mr Noseda to give evidence as to the content of the conversation. It did not call Ms Vasquez, the signatory to the separation certificate, as to the circumstances surrounding the creation of the certificate or its contents. It did not provide any evidence to explain why Mr Davies accrued leave until 11 January 2019 but the termination date specified in the separation certificate is 9 January 2019. Further, Mr Davies’ evidence as to his conversation with Mr Noseda was not challenged in cross examination. Accordingly, the only evidence before the Commission as to the content of the Telephone Conversation is Mr Davies’ unchallenged evidence that in that conversation Mr Noseda told him he could not come back to work and the Respondent could no longer employ him. Accordingly, on the basis of the evidence currently before the Commission, I am unable to conclude other than that Mr Noseda dismissed Mr Davies in the Telephone Conversation on 13 November 2018. As such, I am satisfied that Mr Davies’ dismissal was communicated to him in the Telephone Conversation and that the dismissal took effect from that date.

[11] Accordingly, the time period for lodging the application ended at midnight on 5 December 2018 and the application was therefore lodged 475 days out of time.

Consideration

[12] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 31

[13] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 32 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.33

[14] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

[15] Mr Davies contends that in the present circumstances there are a combination of factors which gives rise to exceptional circumstances. 34

Reason for the delay

[16] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 35 or a reasonable explanation.36 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd37 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.38 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.39

[17] Mr Davies submits that the reasons for the delay are manifold.

[18] Firstly, Mr Davies submits that he left school at 16 years of age and was not aware of his legal rights and the time limits that apply to making a general protections application under section 365 of the Act. Secondly, Mr Davies says that he was “lost, saddened, depressed and worried about my future” and that from November 2018 to January 2019 his life was a blur and he did not know what to do. 40 Thirdly, Mr Davies submits that the Respondent has from January 2019 until 9 March 2020 dishonestly and misleadingly asserted that he resigned from his employment.41 He says that the Respondent’s conduct prevented him from bringing his general protections claim sooner42 and that the “fresh evidence” on 9 March 2020 that the Respondent conceded that it dismissed him materially changes his general protections claim.43 Mr Davies says the Respondent conceded it dismissed him to advance its position in Workers’ Compensation Commission proceedings (WCC Proceedings) being pursued by him. Fourthly, Mr Davies relies on the separation certificate dated 9 January 2019 which “erroneously” states that he resigned from his employment.44 He says that the certificate and the Respondent’s repeated reliance on it influenced his decision to pursue WCC Proceedings rather than a general protections claim.45 Fifthly, Mr Davies says that from June 2019 until March 2020 he was attempting to resolve the dispute with the Respondent.46 Sixthly, Mr Davies says he relied on advice given to him by Ms Tamara Ng, Senior Case Manager, EML, in or about January 2019 and on the basis of that advice did not seek legal advice until June 2019.47 Finally, Mr Davies says that his legal representative was in Europe for six weeks from June 2019 until August 2019 and from 14 October 2019 until 23 December 2019 was appearing in a Supreme Court trial in New South Wales.

[19] I address each of the reasons for the delay advanced by Mr Davies in turn.

[20] It is well established that ignorance of one’s right is not an acceptable explanation for late lodgement. 48 Accordingly, Mr Davies’ lack of awareness of his rights does not provide an acceptable explanation for the delay.

[21] I accept that Mr Davies was lost, saddened and worried about his future following his dismissal. However, these are understandable and common reactions. Mr Davies did not file any medical evidence in support of his asserted depression, or any other mental health concern, nor any evidence that these prevented him from lodging his application in time. This does not provide an acceptable or reasonable explanation for the delay in lodgement.

[22] The Respondent denies that it misleadingly or falsely claimed that Mr Davies resigned. 49 It says its position that Mr Davies resigned was based on the material available to it, namely, Mr Noseda’s recollection of his interactions with Mr Davies, the absence of a termination letter on file for Mr Davies, the separation certificate stating that Mr Davies ceased his employment voluntarily50 and the continued accrual of leave by Mr Davies until 11 January 2019.51 Irrespective, it submits that a dispute over whether employment ceased by way of dismissal or resignation does not prevent an application being made. It submits that such a disagreement is not unique.52 I accept that until 9 March 2020 the Respondent maintained that Mr Davies resigned, however, I do not consider that establishes that the Respondent has acted dishonestly or has deliberately misled Mr Davies. On the basis of the material available to the Respondent it appears to have been a position reasonably open to it. I also reject the submission that the Respondent’s conduct in continuing to assert that Mr Davies had resigned precluded him from bringing his general protections claim sooner or that this “fresh evidence” materially changes his general protections claim. Firstly, that there is a disagreement between the parties as to how an applicant’s employment ceased in no way precludes a general protections application from being made. Indeed, it is a common feature of many applications made to this Commission. Further, the Commission is not required to be satisfied that an applicant making an application under section 365 has been dismissed before it is required to deal with such an application. It is sufficient if an application is filed alleging a contravention of Part 3-1 of the Act.53 Secondly, Mr Davies’ evidence was that Mr Noseda terminated his employment in the Telephone Conversation.54 He said that during that conversation Mr Noseda gave him the “sack”.55 It was for this reason he sought payment of his accrued entitlements on 24 December 2018.56 Accordingly, Mr Davies was clear that he had been dismissed by the Respondent in the Telephone Conversation. In light of that, it is difficult to see how the Respondent’s view that Mr Davies had resigned could have in any way precluded Mr Davies from making his application in time. Thirdly, it is uncontested that since 9 March 2020 the Respondent has accepted that it dismissed Mr Davies. Notwithstanding that, Mr Davies he did not lodge his claim for a further 15 days. Accordingly, once the asserted impediment to the lodgement of the claim was removed, Mr Davies still did not bring his claim expeditiously. He delayed for a further two weeks. In my view, the Respondent’s conduct in asserting that Mr Davies resigned from his employment does not provide an acceptable or reasonable explanation for the delay.

[23] Mr Davies says that the separation certificate and the Respondent’s repeated reliance on it influenced his decision to pursue WCC Proceedings rather than a general protections claim and that this is an acceptable or reasonable explanation for the delay in lodgement. I reject that submission. Firstly, while the separation certificate states that Mr Davies “ceased work voluntarily”, as set out above, Mr Davies was clear that he had been dismissed by Mr Noseda during the Telephone Conversation and had not resigned. Accordingly, it is difficult to see how the separation certificate and the Respondent’s reliance on it provides an explanation for the delay in making the application. Secondly, Mr Davies’ evidence under cross examination was that he “sort of read just the figures” on the separation certificate and did not see that it stated that he had ceased work voluntarily. 57 As such, the contents of the separation certificate cannot provide an explanation for the delay in lodgement prior to Mr Davies receiving legal advice in June 2019. Under cross examination Mr Davies said that in June 2019 he was advised as to his legal options, of the 21 day time limit for the application and that an application for an extension of time could be made.58 Mr Davies’ evidence was that the legal advice provided to him in June 2019 was to pursue the WCC Proceedings and not to pursue a general protections application.59 Mr Davies says that decision was made due to there being some challenges in bringing a general protections claim arising from the 21 day lodgement period and the separation certificate.60 Accordingly, in June 2019 Mr Davies elected to pursue other legal proceedings, based on legal advice. The delay in lodgement post June 2019 therefore arose from Mr Davies’ decision, based on legal advice, to elect not to pursue a general protections application. That does not provide a reasonable or acceptable explanation for the delay.

[24] Mr Davies submits that from August 2019 to March 2020 he was attempting to resolve the dispute with Respondent. He says that during that time the Respondent did not engage with his legal representative and repeatedly asserted that he ceased work voluntarily. 61 In June 2019 Mr Davies determined to commence the WCC Proceedings. The objective was to negotiate a return to work.62 Accordingly, from June 2019 the ‘dispute’ Mr Davies was seeking to resolve was the WCC Proceedings. I do not consider this provides a reasonable or acceptable explanation for the delay in lodgement. Firstly, the WCC Proceedings in no way precluded Mr Davies from simultaneously pursuing a general protections application. Secondly, I refer to my comments above regarding Mr Davies’ contentions as to the Respondent’s assertions that Mr Davies resigned. Finally, Mr Davies’ own evidence is that in June 2019 he determined not to pursue a general protections claim but, rather, to commence the WCC Proceedings. Accordingly, efforts to resolve those proceedings can in no way provide a reasonable or acceptable explanation for the delay in lodging the application. For the same reason, being that Mr Davies determined in June 2019 not to commence a general protections claim but to pursue the WCC Proceedings, neither Mr Neaves’ European vacation nor his involvement in the Supreme Court matter until December 2019 provide a reasonable or acceptable explanation for the delay. I also note that no application was made in June 2019 before Mr Neaves commenced his vacation in August, nor in December 2019 or January 2020 following the conclusion of Mr Neaves’ appearance in the Supreme Court trial. Further, in my view, it is incumbent on a legal practitioner to ensure that they are able to devote appropriate time and resources to a matter before accepting instructions to act in that matter.

[25] Ms Ng is a Senior Case Manager employed by EML. EML is a third party providing workers’ compensation insurance services to the Respondent. 63 In his affidavit Mr Davies says that in or about January 2019 he had a conversation with Ms Ng in which she told him he would receive worker’s compensation payments until 14 September 2019. He says he then enquired “what happens then, what about my job” to which Ms Ng replied, “you can seek legal advice when your payments finish.”64(Ng Conversation). Mr Davies says that in reliance on this advice, he did not seek legal advice until June 2019.65 He says that based on Ms Ng’s advice he believed he could pursue an unfair dismissal/general protections claim when his workers’ compensation payments ceased. Under cross examination Mr Davies gave slightly inconsistent evidence as to precisely what he had asked Ms Ng and what ‘advice’ she had given him.66 However, irrespective of precisely what was asked of Ms Ng and what advice she gave, it is uncontested that even after Mr Davies sought legal advice in June 2019 he did not lodge a general protections application. He elected to pursue other proceedings. Nor did he lodge an application in September 2019 after his workers’ compensation payments ceased. Accordingly, even if Ms Ng did give advice to Mr Davies that he could pursue an unfair dismissal/general protections claim after his payments ceased as asserted, which I note is difficult to reconcile with his submission that he was unaware of his rights to make such a claim, he did not do so. He did not lodge his application for a further six months. Any ‘advice’ given by Ms Ng therefore cannot provide a reasonable or acceptable explanation for the delay.

[26] The delay is lengthy, being a period of 475 days. In light of the above, I do not consider that Mr Davies has provided a reasonable or acceptable explanation for this very significant delay in lodgement of the application. Mr Davies believed he was dismissed on 13 November 2018. Following his dismissal, he says he was unaware of his rights to bring a general protections claim. He did not read the separation certificate other than to review the sums payable and therefore cannot have relied on the statement in it that he resigned. He delayed seeking legal advice until June 2019. Even if the delay until June 2019 was in reliance on the advice given by Ms Ng, he did not lodge a claim in June 2019. On the basis of the legal advice he received in June 2019, and in knowledge of his ability to make a general protections claim and seek an extension of time, he elected not to do so but to commence the WCC Proceedings. He did not lodge a claim in September 2019 when his worker’s compensation payments ceased. He sought to negotiate an acceptable outcome from the WCC Proceedings over a period of nine months. That appears not to have been achieved and the WCC Proceedings were discontinued on 10 March 2020. He did not lodge a claim at that time but waited a further two weeks to do so. In my view, there is no reasonable or acceptable explanation for the delay. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[27] Mr Davies submits that he disputed his dismissal to Mr Noseda in the Telephone Conversation. In his affidavit Mr Davies says that he immediately objected to his dismissal using words to the effect of “what, is that it, after nearly 40 years”. 67 Under cross examination however, Mr Davies was less emphatic saying that he “sort of complained, I said well is that all there is.”68 The Respondent submits that a verbal comment of “is that all” does not constitute Mr Davies actively challenging his dismissal.69 Whilst I consider there to be some force in that submission, in the absence of any evidence from Mr Noseda as to the content of the Telephone Conversation, I am prepared to accept that Mr Davies did dispute his dismissal in the Telephone Conversation.

[28] Mr Davies also submits that he disputed his dismissal in the Ng Conversation. I reject that submission. In his affidavit Mr Davies says that Ms Ng told him he would receive workers’ compensation payments until September 2019 in response to which he said “what happens then, what about my job”. 70 However, under cross examination Mr Davies’ evidence was that he said “then I said to her well what happens then and she said you could seek legal advice”. Firstly, I do not consider such an enquiry amounts to disputation of a dismissal. Secondly, I consider Mr Davies’ evidence under cross examination to be more accurate and, consequently, consider that the enquiry did not relate to his “job” as asserted in his affidavit but to what happened after the cessation of his workers’ compensation payments. Finally, Ms Ng is an employee of EML. EML is a third party which provides workers’ compensation insurance services to the Respondent. EML was not Mr Davies’ employer. EML therefore had no direct role in Mr Davies’ employment or dismissal. In those circumstances, it is difficult to see how any conversation with Ms Ng could, irrespective of the content of that conversation, properly be considered action taken by Mr Davies to dispute his dismissal from employment with the Respondent.

[29] Notwithstanding that, I am prepared to accept that Mr Davies disputed his dismissal in the Telephone Conversation. This weighs in favour of granting an extension of time.

Prejudice to the employer

[30] The delay in lodgement in this matter is significant, being in excess of one year and two months. A long delay gives rise to a general presumption of prejudice. 71 The Respondent submits that it is prejudiced by the “extensive” delay. It says that Mr Noseda is no longer employed by the Respondent and the recording of Ms Ng’s conversations with Mr Davies are no longer available.72 Mr Davies submits that the Respondent is not prejudiced by the delay because, in summary, Mr Noseda’s employment with the Respondent only recently ended in March 2020, relevant evidence, witnesses statements and medical records exist, most particularly as a result of the payment of workers’ compensation payments until September 2019 and Mr Davies’ immediate supervisor, Mr Pullinger, is still employed by the Respondent.73 Although the delay in this matter is indeed significant, in the particular circumstances of this matter, I cannot identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[31] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[32] Mr Davies alleges that adverse action was taken against him in breach of section 340 and 352 of the Act. 74 Mr Davies alleges that he was dismissed because he took a period of leave due to injury and because he was receiving workers’ compensation payments.75 As set out above, it is conceded by the Respondent that it dismissed Mr Davies. Adverse action was therefore taken against Mr Davies. However, the Respondent denies that it took that action for a proscribed reason. It says that Mr Davies was dismissed because he was unable to perform the inherent requirements of his role.76 On the basis of the material currently before the Commission, Mr Davies’ claim as currently formulated appears somewhat problematic. However, given the interlocutory nature of this application no concluded view is able to be formed. The evidence of both parties would need to be fully tested under oath. In these circumstances, I am prepared to consider the merits of Mr Davies’ application to be a neutral consideration.

Fairness as between the person and another person in a like position

[33] Mr Davies submits that the application and his circumstances are unique. He submits that no other employee was dismissed or affected by the same issue. 77 Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.⁷⁸ Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.⁷⁹ As such, I am not assisted in my consideration of the fairness as between Mr Davies and others in a like position by the submissions advanced by Mr Davies in this regard. I consider this to be a neutral consideration in the present matter.

Conclusion

[34] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[35] Mr Davies submits that the combination of all of the matters dealt with above gives rise to exceptional circumstances. 80 Further, he submits that his engagement with EML and Ms Ng and the Respondent’s assertion until 9 March 2020 that he resigned from his employment are each, individually, exceptional circumstances.81 I have carefully considered each of the matters advanced by Mr Davies, individually and collectively. I have also given specific further consideration to each of the above individual matters which are submitted to be exceptional circumstances. Having considered all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Davies’ application, whether the matters advanced by Mr Davies are considered collectively or individually.

[36] Accordingly, I decline to grant an extension of time under section 366(2). Mr Davies’ application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

T Neaves on behalf of Mr Davies
M Zoetbrood for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
June 11.

Final written submissions:

Applicant, 12 May 2020
Respondent, 2 June 2020

Printed by authority of the Commonwealth Government Printer

<PR721127>

 1   Statement of Agreed Facts at [1]

 2   Ibid at [2]

 3   Ibid at [4]

 4   Ibid at [6]

 5   Ibid at [7]

 6   Ibid at [9]

 7   Ibid at [10]

 8   Ibid at [11]

 9   Ibid at [13]

 10   Transcript PN180-188, PN206-208

 11   Respondent’s written submissions at [20]; Transcript PN275, PN281

 12   Statement of Agreed Facts at [14]

 13   Ibid at [15]

 14   Affidavit of Richard Davies at [20]

 15   Transcript PN277

 16   Form F8A, Attachment 1

 17   Ibid, Attachment 2

 18   Statement of Agreed Facts at [16]; Form F8A Response to general protections application, Attachment 2

 19   Statement of Agreed Facts at [17]; Form F8A Response to general protections application, Attachment 2

 20   Affidavit of Richard Davies at [15]; Transcript PN206

 21   Affidavit of Richard Davies at [16]; Transcript PN207

 22   Affidavit of Richard Davies at [15]

 23   Transcript PN183, PN184

 24   Transcript PN273

 25   Transcript PN280

 26   Transcript PN211

 27   Respondent’s written submissions at [8]

 28   Ibid at [10]

 29   Ibid at [11]

 30   [2016] FWCFB 5500

 31   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 32   [2011] FWAFB 975

 33   At [13]

 34   Applicant’s written submissions at [2], Transcript PN220

 35   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 36   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 37   [2018] FWCFB 901

 38   Ibid at [39]

 39   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 40   Affidavit of Richard Davies at [23]

 41   Applicant’s written submissions at [3-7]

 42   Ibid at [3]

 43   Ibid at [2.2], [7]

 44   Ibid at [2.3], [8-9]

 45   Applicant’s outline of argument, q.1d at [5]

 46   Applicant’s written submissions at [2.4], [16]

 47   Ibid at [2.5], [12-13]

 48   Nulty v Blue Star Group Pt Ltd [2011] FWAFB 975

 49   Respondent’s written submissions at [17]; Transcript PN268

 50   Transcript PN268

 51   Ibid PN275

 52   Ibid PN279

 53   Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321

 54   Transcript PN190

 55   Ibid PN186-190

 56  Ibid PN209

 57   Ibid PN125-126

 58   Ibid PN142-144

 59   Ibid PN163

 60   Ibid PN164-167

 61   Affidavit of Richard Davies at [26]

 62   Applicant’s written submissions at [13]; Transcript PN262

 63   Transcript PN297-301

 64   Affidavit of Richard Davies at [19]

 65   Applicant’s written submissions at [13]

 66   Transcript PN100-102

 67   Applicant’s written submissions at [10-11]; Affidavit of Richard Davies at [15-16]

 68   Transcript PN94

 69   Respondent’s written submissions at [24]

 70   Affidavit of Richard Davies at [19]

 71   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J)

 72   Respondent’s written submissions at [42- 44]

 73   Applicant’s written submissions at [17-19]

 74   Form F8 General protections application, q.3.2, 3.3

 75   Form F8 General protections application, q.3.3 at [2]

 76   Respondent’s written submissions at [46- 47]

 77   Applicant’s written submissions at [24]

78 Wilson v Woolworths [2010] WA 2480 at [24-29]

79 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]

 80   Applicant’s written submissions at [2]; Transcript PN220

 81   Transcript PN255

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