Susan Conlon v Beechworth Carriage Motor Inn

[2019] FWC 6369

[2019] FWC 6369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Conlon
v
Beechworth Carriage Motor Inn
(U2019/7464)

DEPUTY PRESIDENT MASSON MELBOURNE, 17 SEPTEMBER 2019

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

[1] Ms Susan Conlon has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to her alleged dismissal by Beechworth Carriage Motor Inn (‘the Employer’). She claims that she was never made aware of her dismissal. She claims her last working day with the Employer was approximately the 15 February 2019.

[2] Ms Conlon advises that she became aware of her dismissal on or around the 13 May 2019. Her application was filed with the Commission on 8 July 2019.

[3] There is a dispute about the date and in what manner Ms Conlon’s employment ceased. The Employer says Ms Conlon’s employment ceased on 11 February 2019, as this was the last day she attended work. Further, the Employer says it ceased not by dismissal but due to the Ms Conlon resigning and obtaining other employment.

[4] Irrespective of whether Ms Conlon’s employment ceased by dismissal or by resignation, the Act requires applications of this type to be filed within 21 days of an alleged dismissal taking effect.

[5] On either contention, the application made by Ms Conlon is out of time. On Ms Conlon’s case, it is was filed 56 days after her dismissal took effect, making it thirty five (35) days out of time. On the Employer’s case, it was filed 147 days after her employment ceased, making it one hundred and twenty six (126) days out of time. On either case, the application can only proceed if an extension of time is granted.

[6] Ms Conlon seeks an extension of time. The Employer opposes the application and the application for an extension of time.

[7] On 9 August 2019, the parties were informed that the extension of time issue was to be dealt with at a telephone hearing scheduled for 13 September 2019. On the 9 August 2019, the Employer and Ms Conlon were directed to file materials on the extension of time issue. On the 15 August 2019, the Employer filed its submissions, witness statements and other material. On the 23 August 2019, Ms Conlon filed her submissions, witness statements and other material. On the 29 August 2019, the Employer filed submissions in reply to Ms Conlon’s material.

[8] I conducted a telephone hearing on 13 September 2019 to deal with Ms Conlon’s application for an extension of time. Ms Conlan appeared at the hearing and gave evidence on her own behalf and was supported by Mr John Sheehan. The Employer was represented by its Owner/Manager Mr Brain Smith who gave evidence. Ms Lisa Travers who works for the Employer as a Housekeeper/Receptionist/Relief Manager also gave evidence for the Employer.

Background and Evidence

[9] Ms Conlon commenced employment with the Employer on 19 October 2007 as a casual housekeeper. In April 2013 she moved to part-time employment arrangements and began reception work in addition to housekeeping duties. According to Mr Smith, shortly after that change Ms Conlon advised him that she preferred to not do reception work but was happy to continue doing housekeeping duties. 1

[10] On 13 January 2019 Ms Conlon reverted to casual employment following verbal agreement with Mr Smith. 2 This was due to a decline in the Employer’s business and its inability to sustain two employees on permanent part-time arrangements. Ms Conlon was unhappy with her changed employment arrangements.3

[11] In mid-January 2019 Ms Conlon wrote on the office whiteboard used by staff to record their availability that she was no longer available to work Wednesdays, Saturdays and Sundays. 4 According to Mr Smith, Ms Conlon also verbally advised him on 21 January 2019 that she had found other employment and was no longer available on those days. Mr Smith states that weekends are the busiest times, which is when housekeeping staff pick up most of their hours of work. He also states that apart from weekend work the other busiest day for housekeeping staff is Monday.

[12] Ms Conlon gave evidence that her unavailability for work on Wednesdays, Saturdays and Sundays was due to her caring responsibilities and a response to the reduced hours of work available to her on weekends.

[13] Text messages were exchanged between Mr Smith and Ms Conlon on 14 January 2019 5, and between Ms Travers and Ms Conlon on 31 January & 4 February 20196 in relation to shifts and Ms Conlon’s work availability.

[14] On Monday 11 February 2019 Ms Conlon worked what proved to be her final shift with the Employer. On the following Monday 18 February 2019, on which Ms Conlon was rostered, she did not attend for work. According to Mr Smith he attempted to contact Ms Conlon on 3-4 occasions in the week following and left messages for Ms Conlon to ring him. Ms Conlon did not return Mr Smith’s calls and he assumed that Ms Conlon had resigned from her employment with the Employer.

[15] At 9.31am on 1 April 2019 Ms Conlon sent a text message to Mr Smith in the following terms;

‘Could you do me a separation certificate today’ 7

[16] Mr Smith replied at 11.23am on 1 April 2019 with the words ‘Done’ and attached an image of the Separation Certificate. According to Mr Smith, he also sent the Separation Certificate for Ms Conlon to the Canberra office of Centrelink that same day, as he did not have a forwarding address for Ms Conlon. This was because Ms Conlon had previously used the Employer’s address in Beechworth for the purposes of receipt of correspondence. 8 According to Mr Smith the reason for the separation was stated on the Separation Certificate as ‘resignation’.

[17] On 13 April 2019 Ms Conlon sent a further text message to Mr Smith in the following terms;

‘So Brian are you going to do a separation certificate for me or are you going to be a asshole’

[18] According to Ms Conlon, she received a Centrelink payment in early May 2019 and in a subsequent conversation with a staff member of Centrelink on 13 May 2019, was able to confirm that Centrelink had a received a copy of her Separation Certificate directly from the Employer.

[19] On 29 May 2019, the Applicant filed a Form F9 general protections application for unlawful termination (the General Protections Application) with the Commission. On 31 May 2019 the Applicant verbally discontinued the General Protections Application, confirmation of which was provided to her in correspondence from the Commission in an email dated 3 June 2019.

[20] Ms Conlon confirmed in her evidence that following her last shift with the Employer on 11 February 2019, she neither sought nor had any direct discussions with Mr Smith in relation to her alleged dismissal, her request for a Separation Certificate or the General Protections Application.

Statutory provisions

[21] The provisions of the Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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

Was the application filed within the 21 day statutory period?

[22] It is evident that there is some uncertainty as to when the Applicant’s employment ceased. Identification of the date on which the dismissal took effect is a necessary step in determining the jurisdictional objection to Ms Conlon’s extension of time application.

[23] I accept that Ms Conlon was unhappy with the change in her employment status that occurred in January 2019, that of the change from part-time to casual employment. Ms Conlon immediately responded to the change in her employment arrangements by restricting her days of availability to only weekdays other than Wednesdays, thus effectively limiting her work opportunities given that weekends were the busiest times for housekeeping staff of the Employer.

[24] There is no evidence to suggest that the restriction on the hours that Ms Conlon advised was encouraged or pressured by the Employer, but rather appears to have been a choice Ms Conlon made when confronted with the change in her employment status. The Employer continued to make work available to Ms Conlon in accordance with her reduced hours of work availability as evident by the various text message exchanged between Ms Conlon and Mr Smith and Ms Travers. 9 While Ms Conlon was clearly unhappy with the change in her employment status that occurred on 13 January 2019, she continued to be offered work consistent with her altered employment status and her reduced availability, which offers she accepted up until 11 February 2019.

[25] Ms Conlon was rostered to work on Monday 11 February 2019. She completed that shift but did not attend for duty on the following Monday 18 February 2019, and did not respond to subsequent phone calls from Mr Smith in the following week as to her availability for work. Nor did she make any efforts herself to either confirm that she had resigned or establish with Mr Smith whether she remained employed by the Employer. It seems that neither party made any real effort to confirm the status of Ms Conlon’s employment following the week of 18 February 2019.

[26] It is well established that each occasion that a casual employee is engaged is a separate contract of employment. 10 In the circumstances I am satisfied that Ms Conlon’s employment ceased at the conclusion of her last shift on 11 February 2019. My finding as to the date of cessation of employment is not decisive however, as it is also necessary for me to determine the date that the termination took effect having regard to when Ms Conlon became aware that her employment had ended.

[27] The date on which a dismissal should be considered to take effect is the date that the employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v NSW Trains 11 the Full Bench explains as follows:

‘[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” (Emphasis added)

[28] The Applicant contends that she was dismissed at the initiative of the Employer and became aware of this on 13 May 2019, when she confirmed with Centrelink that it had received a Separation Certificate from the Employer. The contention that Ms Conlon was unaware of her termination of employment until the 13 May 2019 seems implausible however, given her earlier communication by text message with Mr Smith on 1 & 13 April 2019 when she specifically sought a Separation Certificate. I am fortified in my view on this point by Ms Conlon’s failure to communicate with Mr Smith following her last shift on 11 February 2019 as to the status of her on-going employment.

[29] As made clear in Matthew Reid v Broadspectrum 12a dismissal takes effect when the employer or casual employee makes clear by words or actions that there will be no further engagements. I am satisfied that Ms Conlon was aware that her employment had ceased, whether at her or the Employer’s initiative, at least on 1 April 2019 if not prior to this date. This is evidenced by Ms Conlon’s request for a Separation Certificate on 1 April 2019. The intemperate tone of Ms Conlon’s subsequent text to Mr Smith on 13 April 2019 merely reinforces my view that Ms Conlon well knew that the employment relationship had ended.

[30] I am satisfied that while Ms Conlon’s last shift with the Employer was on 11 February 2019, Ms Conlon confirmed by her ‘words’ on 1 April 2019 that she regarded the employment relationship as having ended as at that date. It therefore follows that Ms Conlon’s application for unfair dismissal which was filed on 8 July 2019 was not filed within the required 21 day period, having been filed 98 days after the effective date of termination of employment. This means that her application for unfair dismissal was filed 77 days beyond the 21 day statutory required under s394(2)(a) of the Act.

Whether there are exceptional circumstances to allow an extension of time

[31] Ms Conlon’s application can only proceed to determination on the merits if she can establish that ‘exceptional circumstances’ exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full bench decision in Nulty v Blue Star Group Pty Ltd 13which 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.”

[32] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 14that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s 366(2)(a) of the Act, a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:

“[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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.” (footnote omitted).”

[33] In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s 394(3) above. I will now deal with each of those matters.

Reason for the delay (section 394(3)(a))

[34] One of the matters that must be considered and weighed is whether an acceptable reason for the delay in making the unfair dismissal application exists. 15

[35] Ms Conlon advances the following reasons for the delay in filing her application;

•  She was never formally notified that she had been dismissed by the Employer;

•  She was never directly provided with a Separation Certificate by the Employer;

•  She was unaware of the 21 day time period due to her unfamiliarity with Commission processes;

•  She had made her General Protections Application in error which was subsequently discontinued; and

•  Her support person Mr Sheehan was away on leave for a two week period in the first half of June 2019.

[36] As I have found above, the effective date of termination of Ms Conlon’s employment was that of 1 April 2019 when she requested a Separation Certificate from Mr Smith. The Separation Certificate was immediately forwarded by Mr Smith to Centrelink in Canberra as Ms Conlon had not provided a forwarding address. Ms Conlon was not aware that the Employer had forwarded the Separation Certificate to Centrelink until her conversation with a staff member of Centrelink on 13 May 2019.

[37] I accept that Ms Conlon was never advised by the Employer that her employment had been terminated. That is unsurprising on one view as the Employer regarded the employment as having been brought to an end by Ms Conlon’s resignation. Ms Conlon consequently regarded the Separation Certificate as necessary for the purpose of confirming the termination of her employment. Having regard to the weight Ms Conlon attached to the Separation Certificate, her inaction in the period between 1 April 2019 and 13 May 2019 is reasonably explained by her not having received a copy of the Separation Certificate or being aware that it had been provided to Centrelink until her conversation with a staff member of Centrelink on 13 May 2019.

[38] Ms Conlon’s claimed uncertainty as to her employment status could certainly have been remedied earlier than 13 May 2019 had she adopted a more direct and professional approach in her communication with the Employer and/or provided an alternate mailing address. For its part the Employer could also have been more diligent and effective in its communication with Ms Conlon following her last shift on 11 February 2019. In the circumstances however I am satisfied that Ms Conlon has provided an acceptable explanation for the period of delay between 1 April 2019 and 13 May 2019.

[39] After confirming Centrelink’s possession of the Separation Certificate on 13 May 2019 the unfair dismissal application was not filed by Ms Conlon until 8 July 2019. This represented a further delay of 56 days. Part of this delay can be reasonably explained by Ms Conlon’s incorrectly filed (on 29 May 2019) and subsequently withdrawn (on 31 May 2019) General Protections Application. The delay beyond the 31 May 2019 until 8 July 2019 was attributed by Ms Conlon to Mr Sheehan being away for 2 weeks in early June 2019 and Ms Conlon’s unfamiliarity with the Commission processes, and in particular the 21 day filing requirements.

[40] I am not persuaded that Ms Conlon’s explanation of the delay beyond 31 May 2019 is reasonable. Her submission that she was unfamiliar with the Commission processes and the 21 day filing period requirements is not unusual. In any event that submission is undermined by her having made her General Protections Application which she claims to have filed within 21 days of her becoming aware of her dismissal on 13 May 2019. By arguing that she had filed that application within 21 days, albeit it was subsequently withdrawn, it is clear that Ms Conlon was aware of the requirements to file her application in a timely manner.

[41] Ms Conlon was aware on 31 May 2019 when she withdrew her General Protections Application that she had filed the wrong application but took no steps to file her unfair dismissal application until 8 July 2019. The only explanation for that further period of delay was that her support person Mr Sheehan was away for a 2 week period. I find the explanation of the further delay from 31 May to 8 July 2019 entirely unconvincing.

[42] Having regard to the above I am satisfied that Ms Conlon has provided a reasonable explanation for her delay in filing her unfair dismissal application from 1 April to 31 May 2019. I am not satisfied however; that the Applicant’s claimed confusion and ignorance of unfair dismissal filing requirements is a reasonable explanation for the further period of delay from 1 June to 8 July 2019. Consequently I am not satisfied that Ms Conlon has provided an acceptable reason for the ‘period of delay’. This weighs strongly against a finding that exceptional circumstances exist that would justify an extension of time being granted.

Awareness of the dismissal taking effect (section 394(3)(b))

[43] The Employer contends that Ms Conlon resigned with her last shift being 11 February 2019. Ms Conlon states that she became aware that she had been dismissed on the 13 May 2019 when she spoke with a staff member of Centrelink who confirmed Centrelink’s receipt of a Separation Certificate from the Employer. For the reasons previously detailed I do not accept that either of these dates represent the date at which the dismissal took effect. I am satisfied that Ms Conlon was aware of the termination of her employment on or by 1 April 2019 for the reasons outlined at [22]-[30] above. This weighs against a finding that exceptional circumstances exist that would justify an extension of time being granted.

Action taken to dispute dismissal (section 394(3)(c))

[44] Ms Conlon made no contact with the Employer following her last shift on 11 February 2019 apart from text messages sent to Mr Smith on 1 & 13 April 2019 requesting a Separation Certificate. On that basis it cannot be said that she disputed her alleged dismissal with the Employer. She did however file her General Protections Application on 29 May 2019 in error which she subsequently withdrew on 31 May 2019. Beyond that action there is no further evidence of Ms Conlon disputing her dismissal.

[45] Having regard to the General Protections Application having been withdrawn and the fact that I have already had regard to that application in considering the reason for the delay, I regard that action to be a neutral consideration in assessing s 394(3)(c).

Prejudice to the employer (section 394(3)(d))

[46] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17 The employer must produce evidence to demonstrate prejudice.

[47] Ms Conlon submitted that no particular prejudice would be suffered by the Employer while Mr Smith stated that the Employer had been required to train and engage new staff to cover Ms Conlon’s departure.

[48] I am not satisfied that the prejudice described by the Employer is any greater than would have been the case had the application been made within the 21 day time period. Accordingly, I regard the prejudice to the Employer as a neutral consideration.

Merits of the Application (section 394(3)(e))

[49] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 18it said:

“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.”

[50] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case” 19 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[51] In her Form F2 – Unfair Dismissal Application form, Ms Conlon stated that she was ‘a permanent employee who was dismissed with no notice, no reasons and no payment of money owed or income in lieu of notice’ and that no reason was given for her dismissal but claimed that at the time of her dismissal she was ‘involved in a work cover claim.’ During her aural evidenceMs Conlon stated she was forced to transfer from permanent part-time employment to casual employment in January 2019 which also rendered the dismissal unfair.

[52] The Employer resisted Ms Conlon’s characterisation of the employment termination as a dismissal at its initiative. Mr Smith gave evidence that Ms Conlon failed to attend work in the period immediately following her last shift on 11 February 2019, and that he unsuccessfully attempted to contact Ms Conlon by telephone on 3-4 occasions after that date and left messages which Ms Conlon did not return. He formed the view that as Ms Conlon had not made herself available for rostered work and had in fact resigned.

[53] As regards the change in Ms Conlon’s status from that of a permanent part-time employee to that of casual employee in January 2019, Mr Smith states that it was verbally agreed with Conlon that she would change to casual employment in response to the downturn in the Employer’s business. Mr Smith also stated that by the time that change in employment status had occurred Ms Conlon had returned to normal duties following her workers compensation claim.

[54] I am not able to make a final assessment of the merits as clearly there are factual disputes between the parties that have not been tested. I consequently consider this criterion to be neutral.

Fairness between persons in similar position (section 394(f))

[55] Neither party made submissions on this issue and on that basis I consider this criterion to be neutral.

Conclusion

[56] Having taken into account the matters specified at s 394(3)(a) to (f) of the Act, insofar as they are relevant in the circumstances, I am not satisfied that there are exceptional circumstances such as to allow a further period for the substantive application to be made. In reaching this conclusion, I have found that the lack of an acceptable explanation for the reason for delay weighs strongly against granting the application, and that all other factors either weigh against or are neutral considerations.

[57] The application for an extension of time is refused and therefore the unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Conlon on her own behalf.

B. Smith on his own behalf.

Hearing details:

2019
Melbourne
September 13

Printed by authority of the Commonwealth Government Printer

<PR712349>

 1   Exhibit R1, Witness Statement of Mr Brian Smith, dated 16 August 2019

 2   Ibid

 3   Exhibit R2, Witness Statement of Lisa Travers, dated 16 August 2019

 4   Ibid

 5   Exhibit R7, Text messages between MS Conlon and Mr Smith, dated 14 January 2019

 6   Exhibit R6, Text messages between Ms Conlon and Ms Travers, dated 31 January and 4 February 2019

 7   Exhibit R3, Txt messages dated 1 & 13 April 2019 from MS Conlon to Mr Smith

 8   Ibid

 9   Exhibit R6 & R7

 10   Wayne Sortland v The Smiths Snackfood Co Ltd (Shortland) [2010] FWAFB 5709

 11   [2016] FWCFB 5500.

 12   [2015] FWCFB 519

 13   [2011] FWAFB 975

 14   [2018] FWCFB 901.

 15   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 17   Ibid

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 19  Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].