Riley Keatley v SRG Leisure Retail Pty Ltd
[2024] FWC 612
•7 MARCH 2024
| [2024] FWC 612 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Riley Keatley
v
SRG Leisure Retail Pty Ltd
(U2024/595)
| COMMISSIONER P RYAN | SYDNEY, 7 MARCH 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Riley Keatley (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) made on 17 January 2024 (Application).
In the Application, the Applicant states that his employment with SRG Leisure Retail Pty Ltd (Respondent) commenced on 12 October 2020 and was terminated with effect from 14 September 2023.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).
By the dates set out in the Application, the period of 21 days ended at midnight on 5 October 2023. The Application was therefore made 104 days outside the 21 day period. The Applicant asks the Fair Work Commission (Commission) to allow a further period for the Application to be made under s.394(3).
Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 24 January 2024 advising that the Application appeared to have been made out of time and inviting the Applicant to provide any preliminary submissions. On 29 January 2024, the Applicant filed a preliminary submission setting out an explanation for the delay in making the Application.
The matter was heard on 4 March 2024. I exercised my discretion to grant permission to the Respondent to be represented by a paid agent, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Ms N Visedo, Senior Workplace Relations Consultant of HR Assured.
The following witness statements and documents were admitted into evidence:
· Applicant’s preliminary submission dated 29 January 2024 (Exhibit A1);
· Applicant’s statement/submission in chief (Exhibit A2);
· Applicant’s statement/submission in reply (Exhibit A3);
· Applicant’s Bundle of Documents (Exhibit A4);
· Witness Statement of Ms Wendy Chiu, the Applicant’s mother (Exhibit A5);
· Recording of Respondent’s CCTV Footage (Exhibit A6); and
· Witness statement of Stephen Lyons, employed by the Respondent as Area Manager NQ (Exhibit R1).
The Applicant, Ms Chiu, and Mr Lyons gave evidence at the hearing.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Relevant Background
It is relevant to set out the following background for context.
In October 2020, the Applicant was employed as a retail team member at the Respondent’s BCF Smithfield Store located in Far North Queensland.
On or about 24 July 2023, there was an incident involving the Applicant and a Supervisor in which the Applicant alleges the Supervisor assaulted him by striking him with a backhanded fist to the chest (July Incident).[1]
While there was an attempt by the Store Manager to resolve the issue between the Applicant and the Supervisor, it remained unresolved. On 10 August 2023, the Applicant sent a written statement complaining about the July Incident and its impact upon him to the Respondent’s Human Resources Department and Mr Lyons.[2] The Applicant also sought to be rostered on at different times to the Supervisor.[3]
On 11 August 2023, Mr Lyons received an email from the Supervisor alleging the Applicant had engaged in a number of instances of unsafe and inappropriate behaviour in the workplace. Some of the allegations related to conduct that occurred in or about March 2023.[4]
On 24 August 2023, Mr Lyons sent correspondence to the Applicant setting out four allegations of unsafe behaviour and two allegations which were described as bullying and/or sexual harassment. The Applicant was directed to attend a meeting on 25 August 2023 to provide a response to the allegations.[5] The correspondence also contained the following statement:
Confidentiality
In accordance with the SRG Code of Conduct, you are reminded of your obligations relating to workplace matters, specifically in relation to confidentiality and victimisation. To be clear, you may not contact, discuss or approach Super Retail Group team members, customers or suppliers in any manner, including via social media, in relation to this process or the matters which will be discussed with you.[6]
On 25 August 2023, the Applicant and his father attended the meeting with Mr Lyons and the Store Manager which was held over Microsoft Teams. At the commencement of the meeting Mr Lyons read out the confidentiality section of the correspondence dated 24 August 2023. Mr Lyons stated that the Applicant admitted to some of the allegations.[7]
In his evidence, the Applicant stated that while he admitted to some of the allegations, he denied others. Furthermore, the Applicant stated that the allegations he admitted to had been previously dealt with. The Applicant also questioned the timing of the allegations which were reported the day after he submitted his complaint regarding the July Incident.[8] The Applicant contends that the real reason for his dismissal was the making of the complaint about the July Incident.
On 14 September 2023, the Applicant and Ms Chiu attended an outcome meeting with Mr Lyons during which Mr Lyons advised the Applicant that his employment was terminated for serious misconduct.[9] The letter of termination stated that the “Super Retail Group (SRG) has made a decision to summarily dismiss you due to sexual harassment and repeated safety breaches posing a risk to the health and safety of yourself, your team and our customers” and reminded the Applicant of the confidentiality obligations set out in his contract.[10]
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may 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.[12]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[13]
I now consider these matters in the context of the application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 an applicant’s favour, however all of the circumstances must be considered.[14]
The Applicant stated that he had “refrained from filing an unfair dismissal claim” against the Respondent because he trusted the Respondent to investigate his complaint regarding the July Incident.[15]
The Applicant stated that in “early/mid-January 2024”, he was informed by former colleagues that the Supervisor involved in the July Incident remained on the roster. The Applicant stated that upon receiving this information he was “compelled to act”[16] and that the “the revelation of [the Supervisor] still being employed prompted my application.”[17]
The Applicant stated that he then undertook research and made the Application. It was through his research that the Applicant became aware of the 21 day period.
The Applicant submitted that irrespective of whether the Respondent took disciplinary action against the Supervisor, he would have made the Application, but confirmed that being informed the Supervisor remained on the roster prompted him to do so.
It is clear that the Applicant decided not to make an application for an unfair dismissal remedy following his dismissal and changed his mind some four months later upon being informed that the Supervisor remained on the roster. I do not accept this constitutes an acceptable or reasonable explanation for the delay.
Notwithstanding the Applicant’s explanation of what prompted him to make the Application, the Applicant submitted the following additional reasons to explain the delay:
· Lack of knowledge of the 21 day period;
· University assessments and exams;
· Depression/Medical Incapacity exacerbated by the separation of his parents;
· Passing of Store Manager’s father;
· The Respondent’s confidentiality direction; and
· The impact of Cyclone Jasper.
Lack of knowledge of the 21 day period
In his statement/submission in reply, the Applicant stated that “it’s crucial to emphasise that [he] was unaware of the time limit.”[18] In evidence before the Commission, the Applicant stated that he only became aware of the 21 day period in “early/mid-January 2024”.
It is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[19]
A simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.
I do not accept that lack of knowledge of the 21 day period constitutes an acceptable or reasonable explanation for the delay.
University assessments and exams
The Applicant submitted that he is a university student and that he had university assessments and exams to complete throughout the Trimester 3 period of 2023. The Trimester 3 period commenced on 11 September 2023 and concluded on 11 December 2023.[20]
The Applicant stated that following his dismissal, he was overwhelmed with his academic commitments which added to his stress and therefore he planned to complete and lodge an application in the holidays following Trimester 3.[21]
The Applicant agreed that throughout Trimester 3 he was able to prepare for, complete, and pass, each of his university assessments and exams.
However, beyond the bare assertion that he was attending university and had assessments and exams to complete throughout the Trimester 3, the Applicant was unable to state with any degree of precision the volume and timing of his academic commitments.
Having regard to the materials before me, I do not accept the Applicant prioritising his university studies constitutes an acceptable or reasonable explanation for the delay.
Depression/Medical Incapacity
In Victor Blanco v White Bathroom[22] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii)the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted]
I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition or incapacity is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.[23]
The Applicant stated that following his dismissal he “became depressed” and the absence of any disciplinary action taken against the Supervisor triggered “anxiety, stress and disbelief”. The Applicant stated that he “struggled to concentrate on tasks” and a “cloud of sadness and anxiety enveloped him.”[24]
In or about September 2023, the Applicant’s parents separated. The Applicant stated that this added to his depression, and he fell into a “state of doing nothing”.[25]
The Applicant did not adduce any medical evidence demonstrating incapacity such to prevent the lodging of the Application within the 21 day period. In the absence of medical evidence demonstrating incapacity such to prevent the lodging of the Application, and taking into consideration that the Applicant was able to complete and pass his university assessments and exams, I do not accept that depression or medical incapacity is an acceptable or reasonable explanation for the delay.
Passing of Store Manager’s father
The Applicant submitted that he “hesitated” in making the Application due to the passing of the Store Manager’s father. The Applicant stated that he had a great working relationship with his Store Manager and that he “refrained from filing an unfair dismissal claim” because he did not want to add any further stress to the Store Manager’s life.[26]
A text message exchange tendered in support of this explanation indicates that the Store Manager’s father passed away on 5 August 2023.[27] The Applicant’s dismissal took effect from 14 September 2023 and the 21 day period ended at midnight on 5 October 2023.
I do not accept this constitutes an acceptable or reasonable explanation for the delay.
The Respondent’s confidentiality direction
By this reason, the Applicant submitted that during the investigation and dismissal process, the Respondent emphasised importance of confidentiality. The Applicant stated that the fear of breaching his confidentiality obligations became a “significant deterrent” to seeking external advice, including contacting the Commission.[28]
The confidentiality direction is unambiguously clear. The Applicant was directed not to discuss the investigation process with team members, customers or suppliers. The Applicant’s contention that this prevented him from seeking legal advice and/or making the Application within the 21 day time limit is simply unacceptable. I do not accept this constitutes an acceptable or reasonable explanation for the delay.
Impact of Cyclone Jasper
As set out earlier, the Applicant submitted that he planned to submit an application in the holidays following the completion of Trimester 3. However, the Applicant submitted he was further delayed in making the Application due to Cyclone Jasper.
The Applicant resides with his parents at a location just north of Cairns. The Applicant stated that the family home was severely damaged and personal belongings destroyed by flooding in the aftermath of Cyclone Jasper. In support of this reason for the delay, the Applicant provided copies of insurance related documents, including a report of an inspection conducted on 27 December 2023 (Inspection Report). [29]
The Inspection Report states that because of “storm, rain or flash flood” event on 17 December 2023 all rooms within the property were inundated. The Inspection Report concluded that the property was uninhabitable and estimated that repairs would take 2-3 months.[30]
While I accept the flooding of the Applicant’s home would have impacted the Applicant’s ability to make an application in the period following 17 December 2023, I do not accept this is an acceptable or reasonable explanation for the following two reasons.
First, while it is not a pre-condition to the grant of an extension of time that the Applicant provide a credible explanation for the entire period of the delay,[31] the flooding occurred 94 days after the Applicant’s dismissal, and after the Applicant decided to delay the filing of the Application for other reasons which I have found are not acceptable or reasonable explanations.
Second, the Applicant gave clear evidence that the making of the Application was prompted by the receipt of information that the Supervisor was still on the roster. It was upon the receipt of that information that the Applicant considered he was “compelled to act”, rather than any recovery from the impact of Cyclone Jasper.
Accordingly, I do not accept this constitutes an acceptable or reasonable explanation for the delay.
Reason for the delay - Conclusion
The Applicant has submitted a litany of reasons to explain the delay in making the Application. The Applicant’s explanations that he delayed the making of the Application for various reasons and was incapacitated are inconsistent with the Applicant’s explanation of what ultimately prompted the making of the Application.
However, I have given consideration to each of the reasons proffered by the Applicant and I do not consider the reasons for the delay, whether considered individually or together, constitute an acceptable or reasonable explanation for the delay.
The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to make the Application.
This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[32]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[33]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the Application on 17 January 2024. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
A relevant prejudice is one that the Respondent would not have suffered, had the Application been made within 21 days of the dismissal taking effect.[34] It is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[35] In the context of an application for an unfair dismissal remedy, a 104-day delay can only be described as lengthy.
The Respondent submitted that it would suffer prejudice if an extension of time is granted in that the passing of time will negatively impact the ability of witnesses called by the Respondent to recall events or discussions relevant to the determination of the Application.
The Applicant disputed this and submitted that Mr Lyons was able to recall events and that this factor should not weigh against a finding of exceptional circumstances.
If this matter proceeds, witnesses beyond Mr Lyons will be called to give evidence in relation to events that led to the Applicant’s dismissal. Those events occurred as far back as March 2023. The lengthy delay of 104 days may impair the recollection of one or more witnesses to those events. This factor weighs against a finding of exceptional circumstances.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time.
The competing contentions of the parties in relation to the merits of the Application are summarised at [10] to [18] above. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
The Respondent submitted that the Commission has consistently refused an extension of time in circumstances where the person has failed to provide medical evidence demonstrating that a medical condition had a material impact upon the person’s capacity to file an application within the statutory time limit.
It is clear on the authorities cited in Blanco that if a medical condition is relied on, there should be supporting evidence demonstrating that the medical condition had a material impact upon the person’s capacity to file an application within the statutory time limit.
Adopting that position as to fairness between the Applicant and other persons relying on medical incapacity, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[36] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
R Keatley, Applicant.
N Visedo, for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
4 March.
[1] Exhibit A4 (Hearing Book at p.88); Exhibit A6.
[2] Exhibit A4 (Hearing Book at p.88-89).
[3] Exhibit A3 (Hearing Book at p.55); Exhibit A4 (Hearing Book at p.81-82); Exhibit R1 at [12].
[4] Exhibit R1 at [8].
[5] Exhibit R1 at [9], Annexure SL01.
[6] Exhibit R1, Annexure SL01.
[7] Exhibit R1 at [10].
[8] Exhibit A1 (Hearing Book at p.8).
[9] Exhibit R1 at [13]-[14].
[10] Exhibit R1, Annexure SL02.
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[12] Ibid.
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 (Stogiannidis) at [39].
[15] Exhibit A1; Exhibit A2.
[16] Exhibit A1.
[17] Exhibit A3.
[18] Exhibit A3 (Hearing Book at p.55).
[19] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[20] Exhibit A2 (Hearing Book at p.17).
[21] Exhibit A1 (Hearing Book at p.9); Exhibit A2 (Hearing Book at p.15).
[22] [2021] FWC 4694 at [44]-[51].
[23] See also Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28]; Manoj Ellikuttige v Moonee Valley Racing Club Inc.[2018] FWCFB 4988 at [29]-[31]; Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37]-[38].
[24] Exhibit A1 (Hearing Book at p.8).
[25] Ibid.
[26] Exhibit A2 (Hearing Book at p.15).
[27] Exhibit A2 (Hearing Book at p.19).
[28] Exhibit A2 (Hearing Book at p.15).
[29] Exhibit A4 (Hearing Book at p.71-76).
[30] Ibid.
[31] Stogiannidis at [40].
[32] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[33] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[34] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [31].
[35] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black[2023] FWCFB 38 at [51].
[36] See paragraph [14] above.
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