Samantha Thompson v Sitro Group Australia

[2020] FWC 4284

[2020] FWC 4284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Thompson
v
Sitro Group Australia
(U2020/9193)

COMMISSIONER WILSON MELBOURNE, 20 AUGUST 2020

Application for an unfair dismissal remedy – extension of time – exceptional circumstances – application dismissed.

[1] This matter concerns an application made by Samantha Thompson alleging unfair dismissal against her former employer, Sitro Group Australia (Sitro). Ms Thompson was notified verbally and in writing on 27 March 2020 that her employment was to be terminated for reason of redundancy, with the termination taking effect on Friday, 10 April 2020. Subject to the matters discussed below, Ms Thompson’s unfair dismissal application was received in the Fair Work Commission on 4 July 2020.

[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 Thompson’s application was made outside of the statutory time limit, with it having been made 64 days after the expiry of the 21 day time period allowed for by the Act, which ended on Friday, 1 May 2020.

[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Thompson’s application. Although an objection was not raised by Sitro on the Form F3 Employer’s Response form, in the outline of argument filed in these proceedings and in the hearing before me Sitro objects to there being an extension of time granted to Ms Thompson arguing that there are not exceptional circumstances for the extension of time to be granted. They also object that the dismissal was a case of genuine redundancy.

[4] Evidence was led by Ms Thompson on her own behalf and Mr Benjamin Finger and Mr Stephen O’Byrne for Sitro, the Respondent.

[5] 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

[6] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Ms Thompson’s case and an extension of time should not be granted for the making of her unfair dismissal application.

BACKGROUND

[7] Such material as is available to the Commission about the parties dispute discloses that Ms Thompson was first employed by Sitro as a storeperson on 29 April 2019 and that on 27 March 2020 she was notified that Sitro no longer had work for her and that as a result she would be made redundant with effect from 10 April 2020.

[8] In other available background Ms Thompson indicates that there were a number of issues between her and Sitro commencing in October 2019. There was a dispute in October 2019 between her and another person, presumably her supervisor, about Ms Thompson’s need to leave work after being informed her grandmother had died including for the purposes of attending her funeral. Later in November 2019 Ms Thompson injured herself and in December 2019 she was cautioned about her productivity by Sitro CEO Benjamin Finger and its Operations Manager, Stephen O’Byrne. On a day shortly after Christmas 2019 Ms Thompson was provided with a written warning by Mr O’Byrne and another person, Rosa, relating to an allegation that Ms Thompson had raised her voice to Rosa over the phone.

[9] In February 2020 Ms Thompson injured herself at work and made a workers compensation claim which took some time to be considered. Ms Thompson notes that three days after her workers compensation application was rejected, on 27 March 2020, she received a telephone call advising her that the company no longer had worked for her and that she would be made redundant. Ms Thompson’s termination of employment was confirmed to her in a letter from Mr Finger dated 27 March 2020.

[10] Ms Thompson attributes her dismissal to having made her workers compensation claim and particularly notes that she was advised about Sitro’s decision to terminate her employment three days after her workers compensation application was rejected.

[11] Having been informed of Sitro’s intention to terminate her employment, Ms Thompson commenced and then discontinued a general protections application in the Fair Work Commission. The application was commenced on 30 March 2020 when she was still employed. After receiving advice from the Commission’s staff to the effect that the application was premature since she remained in employment, Ms Thompson discontinued the application on 3 April 2020 without it having been served upon the Respondent.

[12] The application now before the Commission was received on Saturday, 4 July 2020 with the application having been lodged 85 days after Ms Thompson’s dismissal took effect and it being 64 days out of time.

[13] In support of her application for an extension of time, Ms Thompson relies upon extensive attempts to file an earlier unfair dismissal application:

•  11 April 2020 – Ms Thompson attached to the application for unfair dismissal remedy she made on 4 July 2020 a printout of an email to the address [email protected] dated 11 April 2020. The Commission has no record of such an email being received by it from Ms Thompson on that date. Had an unfair dismissal application been made by Ms Thompson on 11 April 2020, it would have been within the time limit allowed in s.394(2) The printed email is annotated with a handwritten note, both of which provide as follows:

•  Email – dated 11 April 2020:

“Hi

I have enclosed a unfair dismal (sic) claim hopefully I’m sending it to the part if not can you please forward to the people for me

Thanks

Samantha Thompson”

•  Handwritten note:

“Then I resent the same email on 5th May 2020”.

•  5 May 2020 – Ms Thompson emailed [email protected] with an enquiry as to whether an application had been received. The substance of the enquiry included the content of another email, purportedly sent on 11 April 2020 (with it not being clear as to whom the email was addressed) setting out the same text as set out above.

•  6 May 2020 – A staff member at the FWC responded to Ms Thompson. Had an application been lodged on this date, it would have been 5 days out of time. The staff member’s response was as follows:

“Dear Samantha,

We can find no record of the Commission receiving your unfair dismissal application. Please resend your form to [email protected] as soon as possible.

Kind regards

[name omitted]

Client Services

Fair Work Commission

Tel: [phone]

•  12 June 2020 – There is a record on file of a quarantined email sent from Ms Thompson to the Commission which is recorded as unscannable.

•  3 July 2020 – On this date there are several pertinent exchanges. I do not have a precise chronology about these exchanges:

•  There is a record on file of a quarantined email sent to the Commission from Ms Thompson, which is recorded as unscannable. It is possible this email is the exchange referred to below, to and from the Commission, at 4:08 PM and 4:18 PM.

•  Ms Thompson rang the Commission’s helpline enquiring if her application had been received. The staff member who spoke to her advised that the email had not been successfully received and he sent Ms Thompson by return email the same day a blank application form for her to complete and lodge. The staff member, based in Adelaide, sent his email to Ms Thompson at 3.48 PM, and it is not clear if that is Central Standard Time or Eastern Standard Time. If the latter, it may be that the phone and email exchange came after the next set of exchanges, which in turn may have prompted the phone call.

•  At 4:08 PM Ms Thompson attempted to file an application by forwarding the document through an Adobe Acrobat file sharing service. A staff member responded to Ms Thompson at 4:14 PM with advice that her lodgement attempt had been unsuccessful:

“Dear Sammi

On 3 July 2020 the Fair Work Commission (the Commission) received the attached correspondence from you.

The material you have sent contains attachments in a format that is not supported by the Commission's information management systems or has security protections rendering it unable to be opened.

As the attachments cannot be opened they have not been taken to have been lodged.

If the attachments contain an application then this application has not been taken to have been lodged.

Should you wish to lodge an application you should urgently contact the Commission or provide a copy of the completed application form you wish to lodge in accordance with Rule 14.

Please be aware that some applications must be lodged within specific timeframes. Applications lodged outside of these timeframes may be dismissed.

To discuss this matter further you should contact the Commission on 1300 799 675 or reply directly to this email.

Rule 14 of the Fair Work Commission Rules 2013 outlines the requirements for lodging documents by email.

14 Lodging documents by email

(3) If a document is lodged by email:

(a) the document must be attached to the email:

(i) for a statutory declaration-as a PDF or other image format approved by the General Manager; and

(ii) for any other document-as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and

(iii) without any security restrictions

In addition to the above, any images should be provided in a commonly used format such as JPG, PDF or TIF.

Kind regards

[name omitted]

Client Services

Fair Work Commission

Tel: [phone]

•  4 July 2020 – Ms Thompson successfully made her unfair dismissal application. Having been lodged on Saturday, 4 July 2020, the application is 64 days out of time.

[14] It is relevant also to take into account Ms Thompson’s engagement with the Commission after the matter was referred for a hearing in relation to her application being out of time.

[15] Directions for the filing of relevant material from all concerned were issued by my Chambers to the parties on 28 July 2020. In the case of Ms Thompson those Directions required her to file material explaining why her application was out of time and setting out her submissions for an extension of time by no later than Wednesday, 5 August 2020.

[16] When Ms Thompson failed to file any material by that date my Chambers contacted her on 6 August 2020 reminding her of the need to file material in support of her case. Three consecutive emails were then received from Ms Thompson. The first response elicited from Ms Thompson was short and to the point: “Just wondering what you need from me” and then “I never received a separation certificate”. The third attached a 2-page document titled “unfair dissmal” (sic).

[17] Later, after clarification was provided to Ms Thompson by my Chambers on two occasions there were further responses, also short and to the point, firstly “I only just (sic) the email today” and then later after a second clarification from my Chambers “I did not receive any since I emailed everything off”. Later that day Ms Thompson provided some, but not extensive, submissions in support of her case.

[18] The substance of Ms Thompson’s explanation about the reason her unfair dismissal application was late is that she had problems making the application and was not aware for some time that her application had not been successfully received by the Commission. In the application received by the Commission on 4 July 2020, Ms Thompson’s explanation as to why the application was late was that the Commission could not open her application. In the submissions she provided on 6 August 2020 she explained that she did not know that the application had failed to be received until a few months after her dismissal.

LEGISLATION

[19] 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

[20] 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.

[21] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”  3 

[22] 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. 4

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

1. The reason for the delay

[24] 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. 5 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.6 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.7 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.8

[25] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Ms Thompson’s case the relevant period to be considered is that after the last day for a lodgement to be within time, 1 May 2020.

[26] Ms Thompson’s explanation for her delay in filing a successful application is two-fold; firstly that she sent an email with an application on 11 April 2020, the day after her employment ended, and secondly that her repeated efforts to file an application were thwarted when the Commission was unable to open her correspondence, coupled with the fact there was no notification from the Commission her emails had not been successfully received. It was not until 3 July 2020 that she realised her application had not been received, which she corrected by successfully filing an application on 4 July 2020.

[27] Ms Thompson’s evidence about her filing attempts suggests she filed applications on 11 April, 12 June, 3 July and 4 July 2020. The only one of those which was successfully received is the one filed on 4 July 2020. When it was filed, the application consisted of 9 photos, one for each page of the form and attached documents. The application form is filled in with handwriting. In contrast, Ms Thompson’s general protections application was filed as a single document in a PDF form, with its parts filled in with typing. Ms Thompson does not provide an explanation about the different ways in which she completed the two forms other than to say that her repeated attempts to file were as a result of being advised by Commission staff that the emails she attempted to send to the Commission were corrupted. When pressed, Ms Thompson could not advise of the date on which she was first contacted via telephone by Commission staff to advise of the corrupted correspondence except to say that the communication was after 11 April 2020.

[28] The other three attempted filings are said by Ms Thompson to have been provided to at least two different email addresses to the Commission including what I take from her explanation to be [email protected] and [email protected] being the Melbourne and Adelaide Registries respectively.

[29] Ms Thompson does not give specific evidence about her knowledge of the time limit for the making of an unfair dismissal application however she gave evidence in the hearing before me that she discontinued the premature general protections application after being advised by a Commission staff member to re-file an application after 10 April 2020 being the date her dismissal took effect.

[30] I am not satisfied from the evidence there was an effective filing on 11 April 2020, or any date proximate to it. A search of the Commission’s email system does not disclose any communication from Ms Thompson on or around that date. She knew that to be the case by no later than 6 May 2020, when, having made contact with the Commission on 5 May 2020, she was informed the following day by a Commission staff member there was no record of a communication from her, and that she should resend her application form to [email protected] as soon as possible.

[31] There is no evidence that she followed that advice.

[32] The very best for her case is that she did not try to resubmit an application form until 12 June 2020. However, while there is evidence that an email to the Commission was attempted on that date, it was not able to be accessed by the Commission, and so is not to be taken as a filed document (for the reason there is no way of ascertaining what the document actually was). There is also no record of the Commission’s Registry accepting the correspondence as a lodgement.

[33] The same could be said for the exchange with the Commission on 3 July 2020 at 3.39PM, although that exchange differs qualitatively from the 12 June endeavour (and earlier ones, if there were any), in that Ms Thompson apparently realised her email had not been properly sent and so called the FWC helpline. After being provided with a copy of the application form she then attempted to share a document through a file sharing service and ultimately filed a complete application the next day, more than 24 hours after the phone conversation with the staff member.

[34] Assessment of Ms Thompson’s explanation and evidence suggests two things. First, it must be said she was sufficiently concerned or motivated about her situation to pursue a remedy at various times. She made and then withdrew a premature general protections claim. She made contact with the Commission about her situation on at least a further two and potentially four or more occasions. Secondly though, the contacts with the Commission are each several weeks apart. On Ms Thompson’s case, she had contact of some form with the Commission on 11 April, 5 and 6 May, 12 June, and 3 and 4 July. After discounting the asserted 11 April filing, which I do not consider took place, I accept there was contact of some form on the remaining dates – 5 and 6 May, 12 June, and 3 and 4 July. All of that contact was after the 21-day time period allowed for the making of unfair dismissal applications had expired.

[35] Ms Thompson’s interaction with the Commission after Directions were issued by my Chambers for dealing with the extension of time matter is instructive in resolving the inherent conflict between Ms Thompson’s asserted contact and that which the Commission actually received. After the Directions were issued, there was silence. Upon being reminded, Ms Thompson initially denied having received the Directions. When pressed, she responded the same day.

[36] All of these matters together lead me to conclude that Ms Thompson was aggrieved by her dismissal, but did little about her concern apart from intermittently making contact with the Commission. I cannot find from the evidence before me that Ms Thompson truly believed she had made an application and sat wondering when it would be listed. Her communications with the Commission and her submissions reinforce such finding:

•  On 5 May 2020 she asked “just wondering 8f you”, which I take to be asking “just wondering if you got my application”. That enquiry is materially different from asking what has happened to an application since it was lodged and why there has been no response since lodgement;

•  On 3 July 2020, her enquiry, as recorded by the Commission’s staff appears again to have been concerned with whether her application had been received and not why it had not been actioned.

[37] The advice given to Ms Thompson by the Commission’s staff on 6 May and again on 3 July was to ensure she lodged an application, with instructions about how to do so.

[38] Concern about being dismissed is not enough to be an acceptable explanation. For there to be a valid unfair dismissal application, that concern needs to be connected with an actual application, which in Ms Thompson’s case was not filed until 4 July 2020.

[39] Ms Thompson’s explanation as to why her application was delayed is that the Commission could not open her documents and she did not know there were difficulties in doing so. That explanation though does not take account of the fact that at no time until after 4 July 2020 did the Commission acknowledge receipt of an application. To the contrary, it told her on 6 May 2020 and again nearly two months later on 3 July 2020 that an application had not been received.

[40] The 6 May 2020 communication is important in that it clearly gave Ms Thompson advice which was not heeded. If she actually did attempt to file an application on 12 June 2020 that attempt was more than a month after the Commission’s pointed advice, and in any event did not lead to any confirmation from the Commission there had been a successful application. It then took Ms Thompson a further 3 weeks to take further action, in the form of a further unsuccessful email and then a phone call, followed a day later with a successful application.

[41] I am unable to accept that Ms Thompson has provided an acceptable explanation for the delay in making her unfair dismissal application. While there appear to have been attempts by her to make an unfair dismissal application, those attempts were not completed. Potential unfair dismissal applicants have a responsibility to manage the process themselves or seek assistance. A failure to successfully complete an online or email lodgement is no different from a person mailing an application through the traditional mail service, but not attaching a stamp, failing to put it a post-box, or sending the application to the wrong address. Responsibility for those things attaches to the applicant and of themselves are not acceptable explanations for delayed applications.

[42] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Ms Thompson and for the granting of an extension of time for the making of her application.

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

[43] Ms Thompson became aware of her termination of employment in a phone call with Mr O’Byrne on 27 March 2020, with Sitro then confirming its decision in a letter with the same date. 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

[44] 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. 9

[45] I take into account that Ms Thompson endeavoured to dispute her dismissal through an initial general protections application, withdrawn soon after it was made, and then through the several contacts she had with the Commission listed above, prior to her successful lodgement on 4 July 2020. None of those steps though were known to the Respondent, until the 4 July 2020 lodgement was served upon it in accordance with the Commission’s usual processes.

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

[46] The delay in the filing of the application is 64 days. The Respondent does not submit that it will be disadvantaged if the matter proceeds. There is no argument from the Respondent that its case is dependent on witnesses who may no longer be available, or whose recollection may have diminished with time. Consideration of this criterion is therefore a neutral factor in my overall consideration.

5. The merits of the application

[47] 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.

[48] 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.” 10

[49] 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. 11

[50] The merits of the application likely to be dealt with should the matter proceed to a hearing include the contention on the part of Ms Thompson that she was dismissed as a result of having made a workers compensation application. Ms Thompson does not offer any corroborative material for this contention, other than the proximity of the date of termination to the final decision to refuse her workers compensation application. Her case is entirely comprised of the coincidence of the two events. Sitro contend Ms Thompson’s dismissal was as a result of genuine redundancy. These matters have so far only been the subject of brief submissions from each party.

[51] As a consequence it is too early to be definitive about the strength of Ms Thompson’s case. This criterion is therefore a neutral factor in my overall consideration

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

[52] 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. 12 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.13 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.14

[53] 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 Thompson. That Ms Thompson did not successfully make an unfair dismissal application to the Commission until 4 July 2020, does not on its own constitute exceptional circumstances.

[54] As a result, Ms Thompson’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms S. Thompson, for herself
Mr B. Finger and Mr S. O’Byrne, for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
14 August.

Printed by authority of the Commonwealth Government Printer

<PR721834>

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

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

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

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 7   Ibid, [40].

 8   Ibid, [41].

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

 10   (2000) Print T2421, [14].

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

 12   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 13   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

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