Stephen James Riley v Anglican Aged Care Services Group T/A Benetas
[2022] FWC 2264
•26 AUGUST 2022
| [2022] FWC 2264 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen James Riley
v
Anglican Aged Care Services Group T/A Benetas
(U2022/7695)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 26 AUGUST 2022 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances exceptional.
Mr Stephen James Riley made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 20 July 2022.
The respondent, Anglican Aged Care Services Group T/A Benetas initially objected to the application on the basis that it was lodged out of time. On 9 August 2022, the respondent notified the Commission that it did not seek to press the objection, and that it accepted that there are exceptional circumstances which favour the grant of an extension of time. Nevertheless, it is not in dispute that the application was not made within 21 days after the dismissal took effect as required by s 394(2) of the Act. Accordingly, for the application to proceed in the Commission, a further period for the application to be made must be granted, having regard to the matters set out at s 394(3) of the Act. This decision deals with the issue of whether the Commission should allow Mr Riley a further period of time to lodge his application for an unfair dismissal remedy.
For the reasons that follow, I am satisfied that there are exceptional circumstances and that it is appropriate to exercise my discretion to allow further time for the making of Mr Riley’s unfair dismissal application. The timeframe for lodgement of the application is therefore extended to 20 July 2022.
Background
The respondent is a not-for-profit aged care provider. Mr Riley commenced employment with the respondent in September 2001.[1] Over the past 20 years, Mr Riley has been a full-time employee with the respondent and the relationship has been without serious issue.[2]
In November 2021, Mr Riley’s mother was diagnosed with terminal cancer. This was a major cause of upset and distress for Mr Riley, triggering his attention deficit hyperactivity disorder (ADHD). At the time, Mr Riley had not disclosed this medical condition to the respondent.[3]
In early February 2022, Mr Riley contracted COVID-19. This triggered a worsening of his ADHD as he was fearful that he would transmit COVID-19 to his mother.[4] As a consequence of contracting COVID-19, Mr Riley did not receive a third dose of the COVID-19 vaccination. Mr Riley was concerned with health advice from the Victorian Government in relation to the time between being infected with the COVID-19 virus and receiving a subsequent vaccination, which he considered to be in a state of flux. Mr Riley was therefore uncertain about whether a third vaccination was safe for him.[5]
By letter dated 16 March 2022, Mr Riley was stood down from his employment with the respondent on the basis that he had not provided it with (a) information confirming that he had received a third booster dose of the COVID-19 vaccination, or (b) evidence of a valid medical exemption.[6] Mr Riley said that this uncertainty further triggered his ADHD.[7] The stand down was said to continue “until evidence of both a first, second and booster (third) dose of a COVID-19 vaccine is provided to Benetas, or until the conclusion of formal disciplinary processes.”[8] A meeting was scheduled to take place on 22 March 2022 to discuss the issue.
Mr Riley attended the meeting on 22 March 2022 with Ms Vikki Ough, Residential Services Manager – Benetas Kangaroo Flat, and Ms Alice Veal, Human Resources Partner.[9] During the meeting, Mr Riley explained why he had not yet received his third vaccination.[10] Mr Riley’s sister, Ms Rae Riley, attended the meeting as Mr Riley’s support person.[11] A second meeting was held on 29 March 2022 at which Mr Riley agreed to obtain the third dose of the vaccine and made an appointment for 7 April 2022 to do so.[12] Mr Riley provided the necessary paperwork to the respondent evidencing that he had received the third vaccination.[13]
Subsequently, Mr Riley suffered a mental and emotional breakdown and was unable to return to work. Mr Riley provided the respondent with notice and medical certificates in support.[14] He was deemed unfit for work until Friday 20 May 2022.
On 20 May 2022, Mr Riley sent Ms Ough a text message in which he stated that he would return to work on Monday 23 May 2022.[15] Ms Ough responded stating that “Great. Can we catch up at 9 Monday? Also, flu vaccinations are due to 22/5/2022. Can you please send me back your evidence.”[16] Later that day, Ms Ough sent a further text message saying “Hi Steve. I’ve called Alice and staff without a flu vax after the 22nd May cannot come to work.”[17] Mr Riley contends that he had not been on notice of the requirement the receive an influenza vaccination before he could return to work. The text messages triggered what Mr Riley describes as a mental and emotional breakdown which rendered him unable to return to work.[18]
On 30 May 2022, the respondent sent Mr Riley a letter titled “Abandonment of Employment – make contact.” The letter noted Mr Riley’s personal leave from 1 April to 20 May 2022 and that Mr Riley had not returned to work on Monday 23 May 2022 as he had indicated. It set out the steps taken to contact Mr Riley. The letter then stated “[a]s a result of the above and the fact that we have not heard from you in a substantial period of time, we understand that you may have abandoned your employment.”[19] The letter invited Mr Riley to contact the respondent by no later than 2 June 2022.
Mr Riley sent a lengthy email to Ms Ough on 2 June 2022. Relevantly, the email set out why he had not returned to work on 23 May 2022 or contacted the respondent. The email stated, “I have not abandoned my job. All of the circumstances l've outlined above, have rendered me medically unable to return to work.”[20] A medical certificate was provided for the period between 1 June to 15 June 2022 and an explanation given for why Mr Riley had not produced a medical certificate for the period between 23 May and 1 June 2022.
Ms Ough responded to Mr Riley’s email on 7 June 2022. The email from Ms Ough inquired with Mr Riley about the date he anticipated returning to work. Ms Ough noted that a lot had changed in the workplace during Mr Riley’s absence and that it would be beneficial for them to meet prior to his return.[21] Mr Riley felt that Ms Ough’s email demonstrated that his 2 June 2022 email had been ignored by the respondent. Mr Riley considers that this triggered a significant deterioration in his health such that he was unable to function.[22] At this point, Mr Riley immediately moved in with his sister, Ms Riley, and she commenced conducting his affairs.[23]
By letter dated 28 June 2022, the respondent notified Mr Riley that his employment was terminated by reason of his abandonment, referring to clause 31.4 of the Benetas Nurses and Aged Care employees (Residential Care) ANMF and HWU Enterprise Agreement 2022. The letter explained that Mr Riley had failed to present for work on 23 May 2022 and since and had not responded to the respondent’s requests that he contact his employer.[24] Mr Riley submits that he opened this email on 30 June 2022 and sent a copy to Ms Riley on the same day.[25]
Extension of time
Mr Riley’s employment with the respondent was terminated on 28 June 2022. It follows that the 21-day statutory timeframe for filing an application for an unfair dismissal remedy expired at midnight on 19 July 2022. Mr Riley’s application was received by the Commission on 20 July 2022 and was therefore made one day outside the 21-day statutory timeframe.
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[26] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered in the analysis which follows.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. 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 the applicant’s favour, however all of the circumstances must be considered.[27]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the one day of 20 July 2022.[28] However, the circumstances from the time of the alleged dismissal must be considered in order to determine the reason for the delay beyond the 21-day period.[29]
Mr Riley relies upon an error made by his representative, his sister Ms Riley, to explain the delay in filing his application by one day. At the hearing, Mr Riley gave evidence that while it was his choice to make an application for an unfair dismissal remedy, he relied upon Ms Riley to do so on his behalf. Mr Riley’s position is that he has been dependent upon Ms Riley to conduct his affairs given his current state of health.
Ms Riley gave evidence at the hearing and assumed responsibility for the delay. Ms Riley said that Mr Riley does not have the mental capacity to manage an application for an unfair dismissal remedy and the termination of his employment rendered him unable to function.[30] Ms Riley undertook to manage the application on his behalf. Ms Riley contends that she incorrectly diarised the date on which the unfair dismissal application was due to be filed in the Commission and says that Mr Riley is blameless for her error. Ms Riley attributes the mistake to her mental fatigue given her personal circumstances, which are in summary as follows:
(a) On 14 June 2022, Ms Riley was granted a leave of absence from her employment to provide full time care for her mother, who is terminally ill.[31]
(b) On 27 June 2022, Ms Riley was granted a Carer Allowance and a Carer Payment in respect of her full-time carer’s obligations for her mother.[32]
(c) Ms Riley’s son has ADHD and autism spectrum disorder and she, as a single mother, is responsible for his care.
(d) Ms Riley provides full time care for Mr Riley, who moved in with her shortly after Ms Ough’s email on 7 June 2022.
(e) Ms Riley was in admitted into hospital due to her own health concerns on 28 June 2022[33] and 17 July 2022.[34]
(f) Ms Riley attended private psychology assessments on, relevantly, 30 June, 8 July 2022 and 15 July 2022.
As part of her commitment to assist Mr Riley to file his application for an unfair dismissal remedy, Ms Riley made arrangements for she and Mr Riley to attend a meeting and obtain legal advice through the Commission’s workplace advisory service.[35] The meeting took place on 14 July 2022. I accept Ms Riley’s evidence that she and Mr Riley were advised of the 21-day statutory timeframe for lodgement during this meeting. Ms Riley’s account is reflected in an email she sent to Ms Doriean, also on 14 July 2022, which relevantly states as follows:
“Responding to your email has also been delayed, pending the opportunity to obtain specialist legal advice. Which I was able to do today.
Please take notice, that I will be assisting Steve apply to the Fair Work Commission for unfair dismissal. This application will be submitted in the next few days and within the relevant 21-day limit from Ms. Ough’s dismissal letter.”
Ms Riley gave evidence that she cannot remember if she was advised of a specific date for filing the application. She stated that following this appointment, she wrote herself a diary note specifying “Stevie’s FWC Application Due!!” This appears as an entry in Ms Riley’s diary on 20 July 2022.[36]
A few days later, on 17 July 2022, Ms Riley attended the emergency department for the second time in three weeks with respect to her own ongoing health concerns. Ms Riley’s first visit to the emergency department took place on the date that Mr Riley was dismissed from his employment with the respondent. I do not consider it necessary to set out the history of Ms Riley’s presenting complaints. I am satisfied that the emergency department discharge letters disclose that Ms Riley was suffering from her own ongoing health issues within the 21-day period from the date of Mr Riley’s dismissal.
It is against this factual background that one must consider Mr Riley’s contention that the delay in filing his application was occasioned by an error by his representative (being Ms Riley acting in the capacity of a support person). It is not in dispute that the reason the application was filed one day late was because Ms Riley erroneously diarised the date the application was due. I accept Ms Riley’s evidence that she is presently shouldering significant responsibilities, combined with managing her own health concerns and those of her immediate family, and that these circumstances provide a likely explanation for her mistake. However, the relevant question for determination is whether Ms Riley’s error provides a credible reason for the delay in filing Mr Riley’s unfair dismissal application which, regardless of Ms Riley’s status as a “support person,” the Commission regards as representative error.[37] For the reasons that follow, I am satisfied that the representative error attends the delay.
The general propositions to be taken into account in determining whether representative error (typically where the representative is a lawyer) constitutes an acceptable explanation for delay in the context of an application for an extension of time are as follows:[38]
(a) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(b) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.
(c) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(d) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.
A contention of representative error directed at an industrial organisation is to be considered in a different context to that directed at a lawyer, noting that a union does not act for its members on the same basis as a legal practitioner does for a client. Despite this, having determined to pursue a particular course of action on behalf of a member, a union can be expected to act competently and diligently.[39]
Ms Riley is not a lawyer or a paid agent or an industrial organisation or any other person who might be assumed to have knowledge of the Commission’s jurisdiction. In Lay v Bar's Leaks (Australia) Pty Ltd,[40] a proceeding involving an error by a lay representative that resulted in an unfair dismissal application being lodged seven days outside the statutory timeframe, the Full Bench upheld the first instance finding that in respect of a lay representative, a “prudent person engaging a representative should enquire about their skills and experience.”[41] In the absence of such enquiry, the applicant could not be said to be “blameless.”
The circumstances presently before me are distinguishable from Lay for two reasons. Firstly, I am satisfied on the material that Ms Riley had assumed responsibility for managing Mr Riley’s affairs. Mr Riley’s reliance on Ms Riley must be understood within the context of this relationship.
Mr Riley’s position that he has suffered two psychological breakdowns in recent months is not contested by the respondent, which accepts that there are not insignificant medical issues which impair Mr Riley. While the medical evidence supporting Mr Riley’s submission in this respect is confined, I am satisfied that it supports Mr Riley’s position that he has been incapacitated since at least 21 April 2022. Further, I accept Mr Riley’s evidence that he has been “heavily reliant”[42] upon Ms Riley to support him in “most aspects of daily life due to [his] mental health issues.”[43]
The evidence demonstrates that Ms Riley has taken an active role in providing Mr Riley with assistance and support in the management of his workplace issues with the respondent since at least March 2022. To this end, Ms Riley corresponded with the respondent after Mr Riley’s dismissal, requesting authority to act on his behalf.[44]
Further, from 7 June 2022 Ms Riley assumed management of Mr Riley’s personal and health affairs. It was at this time that Mr Riley moved into Ms Riley’s home following his second psychological breakdown, allowing Ms Riley to provide care for him.
I accept that Mr Riley held a genuine belief that it was necessary for him to rely upon Ms Riley to file the application on his behalf given the state of his health. When asked about his reliance upon Ms Riley during the hearing, Mr Riley said he placed full confidence in Ms Riley to act for him. Ms Riley’s intimate understanding of Mr Riley’s workplace affairs and her role as his assumed carer in respect of his personal and health circumstances provides a reasonable basis for Mr Riley’s reliance on Ms Riley to take conduct of these proceedings on his behalf.
Secondly, to the extent that Ms Riley was not well versed in the Commission’s unfair dismissal jurisdiction, this was cured by Mr Riley and Ms Riley obtaining independent legal advice on 14 July 2022. I accept that they were advised of the 21-day statutory timeframe for lodgement of the application at this meeting. I am therefore satisfied that it was reasonable for Mr Riley to conclude that having been properly advised of the statutory timeframe for lodgement, Ms Riley understood its significance such that his reliance upon Ms Riley to represent his interests by preparing and filing an unfair dismissal application on his behalf was justified.
In these circumstances I accept Ms Riley’s submission that Mr Riley was blameless for the delay.[45]
Having regard to these matters and the conclusions reached, I am satisfied that Ms Riley’s failure to lodge Mr Riley’s unfair dismissal application within the statutory timeframe amounts to representative error. I therefore find that the matter relied upon by Mr Riley to explain the one-day delay in lodging his unfair dismissal application constitutes an acceptable reason for the entire period of the delay on 20 July 2022. This favours the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Riley was notified by the respondent that his employment had been terminated by letter dated 28 June 2022. The termination letter was sent to Mr Riley by email on this date.
In a situation where an employee is informed by email of their dismissal, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address.[46] In this case, the respondent had been corresponding with Mr Riley since at least March 2022 through his Gmail account, and the termination letter was sent to the same email address. In the circumstances, I am satisfied that Mr Riley had a reasonable opportunity to become aware of his dismissal on 28 June 2022 such that this dismissal took effect on 28 June 2022.
Nevertheless, I accept Mr Riley’s evidence, which is not in contest, that he opened the email containing the termination letter on 30 June 2022. However, Mr Riley did not contend that he did not have a reasonable opportunity to become aware of the dismissal on 28 June 2022. While I accept that Mr Riley did not open the email until 30 June 2022 and therefore became aware of the dismissal after it took effect, in the absence of any credible explanation as to why he did not check his emails on 28 June 2022, I do not consider that this is a matter weighing in favour of a finding of exceptional circumstances. I regard this as a neutral consideration.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[47]
Ms Riley notified the respondent in her email of 14 July 2022 that Mr Riley would “apply to the Fair Work Commission for unfair dismissal.”
I therefore find that the respondent was on notice of Mr Riley’s intention to make an application for an unfair dismissal remedy in the Commission from 14 July 2022. This favours the grant of an extension.
Prejudice to the employer: s 394(3)(d)
It is not contended, and nor do I consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that tells in favour of the grant of an extension of time.[48] I therefore regard this as a neutral consideration.
Merits of the application: s 394(3)(e)
Mr Riley contends that he was unfairly dismissed from his employment with the respondent after more than 20 years of exemplary service. Mr Riley says that his dismissal was unfair because the respondent terminated his employment while he was on leave from work after suffering two psychological breakdowns. Mr Riley attributes his health issues to the extreme stress he suffered at the workplace. Mr Riley’s position is that the respondent did not take into account his health concerns before it terminated his employment.
The respondent says that it made several attempts to contact Mr Riley, including phone calls, text messages and ultimately formal correspondence as a consequence of Mr Riley’s failure to present for work or notify the respondent of his absence. In these circumstances, the respondent’s position is that it was entitled to conclude that Mr Riley had abandoned his employment. [49] However, the respondent made oral submissions to the effect that while it views Mr Riley’s merits case as weak, for the purposes of these extension of time proceedings there is insufficient material before the Commission to effectively evaluate the parties’ respective positions.
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[50] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[51]
In the circumstances, there is insufficient evidence before me to assess the relative strength of the substantive application. Accordingly, I regard this to be a neutral consideration.
Fairness as between Mr Riley and other persons in a similar position: s 394(3)(f)
Mr Riley submits that, to his knowledge, there are no other employees of the respondent who are in the same or similar situation to him.[52] However, Mr Riley contends that it would not be unfair to grant an extension of time. He submits that the Commission has done so in similar cases where the delay in filing an application is occasioned by representative error.[53]
Section 394(3)(f) is concerned with the consistent application of principles in cases of this kind. This consideration may relate to matters currently before the Commission or others previously decided by the Commission. As observed by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd,[54] the existence of representative error where the applicant is blameless, absent other countervailing factors, will typically justify a conclusion that there are exceptional circumstances. The principle that errors of a representative should not be visited upon an applicant should be fairly applied.[55]
As earlier found at [36] of this decision, Mr Riley is blameless for the delay. In the specific circumstances of this case, considerations of fairness between Mr Riley and persons in a similar position weigh in favour of an extension of time.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am satisfied that there are exceptional circumstances when the various matters are considered together. My finding of representative error in the particular circumstances of this case is a matter that weighs heavily in favour of this conclusion.
Disposition
As I am satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the application to be made.
In the circumstances, I consider it is appropriate to extend the timeframe for lodgement of Mr Riley’s unfair dismissal application to 20 July 2022, being the date that it was lodged with the Commission.
DEPUTY PRESIDENT
Appearances:
Ms R Riley on behalf on the applicant
Mr R Catanzariti on behalf of the respondent
Hearing details:
10 August 2022, by Microsoft Teams
Final written submissions:
15 August 2022
[1] Form F2 at 1.1
[2] Ibid at 3.2; Exhibit 3 (Applicant Outline or Argument: Extension of time application), 7 at [1]
[3] Exhibit 2 (Witness Statement of Mr Stephen James Riley) at [5]-[7]
[4] Ibid at [9]
[5] Email from Stephen Riley to Vikki Ough dated 2 June 2022; Exhibit 2 at [10]
[6] Form F2 at 3.2 [3]; Stand Down from Employment – Mandatory COVID-19 Booster Vaccination
[7] Ibid; Exhibit 2 at [11]
[8] Stand Down from Employment – Mandatory COVID-19 Booster Vaccination
[9] Exhibit 2 at [12]
[10] Form F2 at 3.2 [5]; Exhibit 2 at [13]
[11] Exhibit 2 at [12]
[12] Letter from Alice Veal to Stephen Riley dated 30 March 2022
[13] Form F2 at 3.2 [7]; Exhibit 2 at [20]
[14] Ibid at 3.2 [8]
[15] Exhibit 2 at [22]
[16] Ibid at [23]
[17] Form F2 at 3.2 at [9]-[11]; Exhibit 2 at [24]
[18] Exhibit 2 at [27]
[19] Letter “Abandonment of Employment – make contact”
[20] Email from Stephen Riley to Vikki Ough dated 2 June 2022; Exhibit 2 at [29]
[21] Exhibit 2 at [30]
[22] Exhibit 2 at [32]
[23] Form F2 at 3.2 [15]-[18]; Exhibit 2 at [33]; Exhibit 1 (Witness Statement of Ms Rae Riley) at [33]-[35]
[24] Letter “Termination of Employment – Abandonment”
[25] Exhibit 3, 7 at [8] and [11]
[26] [2011] 203 IR 1
[27] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[28] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[29] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[30] See email from Ms Riley to the respondent dated 30 June 2022
[31] Emails between Ms Riley and her employer dated 14 June 2022 regarding “Extended Leave”
[32] Carer Payment and/or Carer Allowance Medical Report dated 23 June 2022; Carer Allowance Grant Letter dated 27 June 2022; Carer Payment Grant Letter dated 27 June 2022
[33] ED discharge letter dated 28 June 2022
[34] ED discharge letter dated 17 July 2022
[35] Exhibit 1 at [42]
[36] Photo of Ms Riley’s diary entry dated 20 July 2022
[37] Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647
[38] Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9; see also C. Davidson v Aboriginal & Islander Child Care Agency, Print Q0784 (12 May 1998), ; Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [25]; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802 at [18]; Long v Keolis Downer[2018] FWCFB 4109 at [52]
[39] Alexander Mirow v Suez Pty Ltd [2020] FWCFB 3169 at [27]
[40] [2016] FWCFB 2647
[41] Ibid at [13]
[42] Exhibit 2 at [33]
[43] Exhibit 3, 7 at [7]
[44] Email from Ms Riley to the respondent dated 14 July 2022
[45] Exhibit 1 at [51]
[46] Ayub v NSW Trains[2016] FWCFB 5500 at [35], [36], [42] and [50]
[47] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[48] C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[49] Form F3 at 3.2
[50] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[51] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[52] Exhibit 3, 8 at [1]
[53] Citing Rhind v Ozcare[2018] FWC 6745
[54] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]
[55] Ibid at [42]
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