Sarah Isaacs v My Aspect Health T/A Acacia Pharmacy Pty Ltd

[2021] FWC 6090

[2021] FWC 6090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sarah Isaacs
v
My Aspect Health T/A Acacia Pharmacy Pty Ltd
(C2021/4874)

DEPUTY PRESIDENT BOYCE SYDNEY, 15 OCTOBER 2021

Application to deal with contraventions involving dismissal – request for an extension of time – applicant sent application to wrong email – applicant later notified by Commission Registry that application had not been received due to email address error - applicant took five days after notification from Commission Registry to re-file application - no exceptional circumstances – request for extension of time refused – general protections application dismissed.

Introduction

[1] On 18 August 2021, Ms Sarah Isaacs (Applicant) filed a general protections application involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by My Aspect Health T/A Acacia Pharmacy Pty Ltd (Respondent) for exercising a workplace right, and relies generally upon s.340 of the Fair Work Act 2009 (Act) in that regard.

[2] Section 366(1) of the Act provides that an application made under s.365 of the Act must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act).

[3] It is not in dispute that the Applicant commenced her employment with the Respondent on 3 June 2021, and that she was dismissed on 14 July 2021. Nor is it in dispute that the Applicant was made aware of her dismissal on 14 July 2021. Given that the Applicant filed her Application on 18 August 2021, the Application has been filed 14 days outside of the 21-day time limit. The Applicant should have filed her Application on or before 4 August 2021 for it to have been filed within the requisite 21-day time period. This decision concerns the Applicant’s request for an extension of time.

Procedural background

[4] The Application was allocated to my Chambers on 2 September 2021, and directions were issued for the filing and serving of evidence and submissions.

[5] The Applicant failed to comply with directions. On Friday 17 September 2021, an email was sent to the Applicant from my Chambers directing her to file and serve submissions regarding her non-compliance with directions by no later than 4:00 pm that afternoon. The Applicant replied at 8:33 pm that evening as follows:

“Thank you for your email - due to ongoing medical grounds, I wish to provide medical evidence of my absence during the period of the 4/09/2021 to date.

This has affected my ability to engage and the matter & I have a strong conviction that it is an important matter to stand up for due to the nature of what has happened by Aspect Health.

I wish to provide medical grounds & evidence to consider in continuing the matter.

I have raised this with local MP & others to advocate against bullying & it is important to benefit the wider society not to be pursued and the court to hear my case against the injustice endured by Aspect health.

A medical certificate will be made available.

I am here to act on the matter and present my case given the opportunity - it is rather important - I appreciate your genuine interest to allow this matter to be forthcoming.”

[6] The Applicant did not provide a medical certificate supporting the assertions made by her at to her non-compliance for medical reasons, and did not file her submissions and evidence as per the original directions issued.

[7] On 20 September 2021 my Chambers was forwarded or copied into eight emails from the Applicant to various persons and bodies ranging from the Registry of the Commission, employees of the Respondent, Members of Parliament, and contacts at the University of Queensland. My Associate sent the Applicant the following correspondence:

“Dear Ms Isaac,

The Deputy President has reviewed the below and attached correspondence and notes that you have still failed to comply with the Directions issued on 2 September 2021 to ‘file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents’ in support of why your application is out of time.

Moreover, your email below does not provide an acceptable basis or include evidence as to why noncompliance has occurred, nor indicate the timeframe in which you intend to comply.

In view of the foregoing, if you do not comply with the Directions as issued by 4pm AEST today, Monday 20 September 2021, the matter will be dismissed without further notice.”

[8] The Applicant replied that evening with the following emails at 5:15pm and 5:19pm respectively:

“Thank you for clarifying today.

Exposing bullying is not a problem -- however those details of evidence and data of second bullying incident are not related to this current matter & if made available it was not mentioned prior, if can refer to where. At the end of the day, it is what it is.

Both workplaces are appalling and disgusting in following procedures and policies related to bullying.

I have actively spoken up because this is important to address. The system is perfect what is not perfect is the employers cheating employees and their rights.”

And

“The medical cert can be provided, on just becoming aware of your request due to medical reason, with in 24hrs as my doctor has to issue it.”

[9] Finally, my Associate replied with the following email:

“Dear Ms Isaac,

The Deputy President has reviewed your further correspondence.

You have not complied with the Directions issued on 2 September 2021 to ‘file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents’ in support of why your application is out of time.

Any submissions or evidence in your case, including any medical evidence, were required to be filed and served by 16 September 2021.

You were asked to explain your noncompliance on 17 September 2021, and again today, 20 September 2021. In your correspondence to the Commission on these days you have still failed to provide evidence to support your explanation for your noncompliance, as well as failed to provide submissions and evidence in support of why your application is out of time.

The Deputy President Directs that any evidence you seek to rely on must be filed by no later than 4pm AEST tomorrow, Tuesday 21 September 2021.”

[10] The Applicant provided a medical certificate on 21 September 2021, from Dr Adel El-Mezin, dated 21 September 2021, which stated that the Applicant is “unfit to continue usual occupation/studies” during the period between 8 September and 21 September 2021. The Applicant did not file any submissions, witness statements or evidence in support of her out of time application.

[11] On 22 September 2021, the Applicant included Chambers in an email directed to the Respondent, which included various allegations against the Respondent.

[12] On 27 September 2021, the Applicant forwarded my Chambers correspondence between the Applicant and the Queensland Police Service, which appeared to concern a complaint made against the Applicant by another employee of the Respondent.

[13] On 28 September 2021, the Applicant included my Chambers in an email directed to the Respondent, making various allegations against the Respondent.

[14] On 30 September 2021, one business day prior to the listed hearing, the Applicant emailed Chambers requesting an extension to file her submissions “due to medical grounds”. My Associate replied with the following email:

“Dear Ms Isaac,

The Deputy President has reviewed the below correspondence and advises that the date of the Hearing cannot be moved, and no further extensions can be granted.”

[15] The Applicant replied with the following:

“Dear Admin

Is this in reference to the 30th of Sept?

Has an email been already sent regarding the date mentioned.

I have not made a submission.”

[16] My Associate again replied, with the following:

“Dear Ms Isaac,

Please find attached the Notice of Listing for the Hearing next Tuesday, 5 October, and the Directions, both sent 2 September 2021.

You were granted multiple extensions to these Directions during the week of 20 September 2021.

No further extensions can be granted.”

[17] The Applicant replied that she was “unaware [of the above] due to health reasons”.

[18] On 1 October 2021, my Associate received correspondence from the Respondent. My Associate replied, as requested by the Respondent, that my Chambers had “received no submissions or witness statements in compliance with any of the Directions”. In response, my Chambers received multiple emails from the Applicant, including one containing yet a further complaint made to a Member of Parliament, a request to be provided with surveillance footage from the Respondent’s premises, and an email that indicated that the Applicant had called Lifeline and “was asked if [she] was contemplating suicide”.

[19] On 5 October 2021, the Applicant filed a Form F52 application for an order to produce documents regarding the surveillance footage referred to above. My Associate sent the following response:

“Dear Ms Isaac,

Chambers has received the attached Form F52 and informs the Applicant that the request is denied.

In the formal sense, leave is not granted for the Orders sought for the following reasons:

1. The Form F52 was lodged the morning that the Hearing was listed to occur, and now only one day prior to when the Hearing has been relisted to occur.

2. The video footage requested concerns the substantive merits of the Application. It is not video footage that concerns the matters of the out of time jurisdictional objection.”

[20] At the hearing, the Applicant appeared for herself, and Ms Kelly Blair, Business Operations Manager, and Ms Sanam Souzani, Managing Director, appeared for the Respondent.

Legal principles

[21] Section 366(2) of the Act reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[22] Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to extend time. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”,has stated:

“[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 [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…” 1

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 2

(emphasis added)

[23] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters 3:

“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

..

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.

…

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

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 4

Reason for delay 5

[24] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group 6 (Bianco Mamo), as follows:

“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”

[25] It is clear from the email correspondence between the Applicant and the Registry of the Commission (as saved on the Commission’s electronic record system), and the oral submissions of the Applicant at the hearing, that the Applicant initially believed that she had filed her Application with the Commission on 3 August 2021. However, the Applicant sent her Application to the email address [email protected] (not the email address [email protected]).

[26] The Applicant was made aware of the foregoing mistake on 13 August 2021, when the Commission Registry replied to an email sent by the Applicant on 12 August 2021 following up her Application.

[27] Whilst I accept that the Applicant mistakenly thought she had filed her Application on 3 August 2021, she was made aware by the Commission Registry that this was definitely not the case on 13 August 2021. However, after the 13 August 2021, the Applicant took a further five days, until 18 August 2021, to re-email (refile) her Application with the Commission. The Applicant has filed no submissions or evidence to account for the period between 13 and 18 August 2021. The medical certificate filed by the Applicant with the Commission on 21 September 2021 does not account for this period. Further, the Applicant acknowledged at the hearing that all she needed to do on 13 August 2021, when she found out that she had mistakenly sent her Application to the wrong email address, was to go to her email sent items, and re-forward the email she sent on 3 August 2021 to the correct email address (a process that would ordinarily take no longer than 30 seconds, if that).

[28] In her oral submissions at the hearing before me, the Applicant asserted that the reasons for the delay during this period were due to any or all of the following reasons:

a) restrictions due to a COVID-19 “lockdown” at the time in Queensland;

b) her belief that the Commission was not receiving applications via email during this “lockdown” period in Queensland;

c) the cancellation of a community event that the Applicant had been involved in organising;

d) that she must not have seen or received the email on 13 August; and

e) her ongoing poor psychological health.

[29] I note from public records that the “lockdown” resulting from a COVID-19 outbreak in Queensland in August 2021 commenced on 31 July 2021, ended somewhere around 6 and 8 August 2021. This was accepted by the Applicant during the Hearing. Hence, this is not a reason for delay during the period 13 to 18 August 2021.

[30] In Bianco Mamo, Deputy President Easton outlined issues associated with mental illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:

“[19] 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 were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.

[20] 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.

[21] 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.

[22] 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.”

[23] 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.”

[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence 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.

[25] 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 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 Underwood and Merhi); and

(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).” 7

(footnotes omitted)

[31] I concur with and adopt the foregoing principles.

[32] Prima face, none of the reasons identified by the Applicant, as set out at paragraph [28] of this decision, provide credible or reasonable reasons for her delay in filing her Application for the five-day period between 13 and 18 August 2021. Nor are they reasons which might be said to be, even at their highest, special, unusual, or uncommon. At the hearing, the Applicant was not able to particularise, by way of submissions, or by reference to any cogent evidence, how the reasons she has identified are to be accepted as satisfactory reasons for her delay in filing her Application, i.e. to the extent that they properly explain such delay during the period 13 August to 18 August 2021. Certainly, the medical evidence she relies upon does not state that the Applicant had any incapacity during the period 13 August to 18 August 2021.

[33] At the hearing, the Applicant accepted that whilst she was not necessarily incapacitated during the relevant five-day period of the delay, I should accept that she at least had a reduced “reduced ability” or reduced capacity, due to her psychological condition, irrespective any severity in terms of her mental illness. 8 I reject this submission for three reasons. Firstly, it is contrary to the principles set out in Bianco Mamo (as set out at paragraph [30] of this decision). Secondly, the Applicant acknowledged at the hearing that her mental state (or capacity or ability) was the same during the period 13 to 18 August 2021 as it was at the hearing (noting that the Applicant appeared at the hearing and made coherent submissions in support of her position). Thirdly, it is abundantly clear on evidence before the Commission, that the Applicant was actively engaged in efforts to notify a great many parties of her alleged bullying by the Respondent not only prior to the time that she was dismissed, but all the way up to the hearing before the Commission.

[34] All in all, I find that the evidence before me, as to the reasons that the Applicant advances as to her failure to file her Application within the 21-day time period, weighs against any finding (or satisfaction) as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal 9

[35] There is evidence before me as to the various attempts that the Applicant took to dispute her dismissal (both with the Respondent, and other persons/bodies). However, in my view, none of this evidence is such that it can be said to weigh in favour of a finding as to exceptional circumstances. Indeed, if anything, the fact that an employee may choose to broadly broadcast the alleged unfairness and injustice of their dismissal is a matter that highlights that they were aware of their dismissal and its alleged faults, and should have filed any relevant application within time (in the appropriate jurisdiction). That said, I consider it appropriate to treat this criterion as a neutral consideration.

Prejudice 10

[36] In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made). I therefore treat this criterion as a neutral consideration. 11

Merits 12

[37] The principles stated Kyvelos v Champion Socks Pty Ltd 13 (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:

“In considering whether to accept an application which has been lodged outside the time … 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 … 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 … 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 …”. 14

[38] In Kornicki v Telstra-Network Technology Group, 15 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[39] The Applicant says that she was terminated for a prohibited reason, being that she made a complaint in relation to experiencing bullying in the workplace. The Respondent rejects this contention, and disputes many of the underlying facts upon which it is based.

[40] The merits of the Application were not tested before me. Evidence as to the substantive merits of a general protections application is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. In my view, the merits of this Application would require close scrutiny before a court. 16 I am not in a position to determine the merits of the Application, and therefore treat it as a neutral consideration.

Fairness as between the Applicant and other persons in a similar position 17

[41] I am required to consider fairness as between the Applicant and other persons in a similar position. There were no submissions made as to this criterion, and I am not otherwise aware of any person in a similar position to the Applicant. I therefore treat this criterion as a neutral consideration.

Conclusion

[42] I have taken into account and considered individually and collectively the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral). 18

[43] On the basis of my reasons set out in this decision and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence exceptional circumstances warranting the grant of an extension of time for the Applicant to file her Application. In view of this finding, there is no basis at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 18 August 2021 is dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Sarah Isaacs (Applicant), for herself.

Ms Kelly Blair, Business Operations Manager, and Ms Sanam Souzani, Managing Director, for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR734688>

 1   [2011] FWAFB 975.

 2   Ibid.

 3   [2018] FWCFB 901.

 4   Ibid, at [17], [19], [38]-[39].

 5  Section 366(2)(a).

 6   [2021] FWC 3903.

 7   [2021] FWC 3903, at ]19]-[25]. Whilst this reasoning concerned an out of time unfair dismissal claim, there is no basis to suggest that the same reasoning and principles do not apply to an out of time general protections involving dismissal claim.

 8   Transcript of 5 October 2021 at PN121-PN123.

 9  Section 366(2)(b)

 10  Section 366(2)(c).

 11   Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38]).

 12  Section 366(2)(d).

 13 (1995) 67 IR 298.

 14   Ibid at 299 to 300.

 15   Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 16   Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962 at [33].

 17  Section 366(2)(e).

 18   See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.