Thiess Services Pty Ltd v Stephens

[2014] FWCFB 2426

[2014] FWCFB 2426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Thiess Services Pty Ltd
v
M Stephens
(C2014/2889)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2014

Appeal against decision [[2014 FWC 330] and order PR546774] of Commissioner Johns in matter number U2013/9909—leave to appeal granted—appeal upheld—decision and order quashed—decline to allow Respondent further period to make unfair dismissal application—unfair dismissal remedy application is dismissed.

[1] This is an appeal by Thiess Services Pty Ltd (the Appellant) against a decision¹ and order 2 of Commissioner Johns of 13 January 2014 in relation to an application³ made under s.394 of the Fair Work Act 2009 (the Act).Commissioner Johns extended the time for the making of the application under s.394(2)(b) of the Act.

[2] The s.394 application was made by Mr M Stephens (the Respondent) in relation to the termination of his employment by the Appellant on 21 February 2013 on the basis of conduct said to constitute serious misconduct. The Respondent made an application by telephone on 15 May 2013, which was regularised by the filing of a signed and dated application in the Fair Work Commission (the Commission) on 25 September 2013.

[3] At the time of the Respondent’s termination, applications under s.394 of the Act were required to be filed within 21 days of the date the dismissal took effect or within such further period as the Commission may allow. The 21 day period ended on 14 March 2013. Accordingly, the Respondent’s unfair dismissal application was filed 62 days out of time by reference to the application by telephone or 195 days out of time by reference to the filing of the signed and dated application of 25 September 2013.

Background

[4] The employment of the Respondent was terminated by the Appellant by letter of 21 February 2013 on the grounds of serious misconduct, arising from a telephone call the Appellant was satisfied had been made by the Respondent. 4

[5] At some time in March 2013, the Respondent asked the Appellant’s People and Capability Manager, Asset and Infrastructure Services—Mr D van den Berg—whether he could submit any further evidence in relation to his dismissal to the Appellant if he could find any. Mr van den Berg informed the Respondent that new evidence would be considered. 5

[6] On or about 26 March 2013, the Respondent provided a copy of a report prepared by Dr P Rose 6—a forensic voice comparison—to the Appellant.

[7] In a letter from the Services Operations Manager dated 24 April 2013, the Appellant confirmed the receipt of the report and the Respondent’s request that his employment be reinstated but advised him that the original decision to terminate the employment on 21 February 2013 “stood”. 7

[8] On 14 May 2013, the Respondent completed and signed a complaint to the Victorian Equal Opportunity & Human Rights Commission (VEOHRC), 8 on the basis that he was dismissed while on WorkCover and discriminated during his employment.9 The application was marked as received on 17 May 2013 by VEOHRC.10 VEOHRC proceeded with conciliation on 9 August 2013 and the termination of the complaint by the VEOHRC delegate occurred on 27 August 2103.11

[9] On 15 May 2013, the Respondent made his s.394 application by telephone to the Commission and payment was made on that day, 12 although payment was not processed until 28 May 2013.13

[10] On 28 May 2013, the Commission wrote to the Respondent, referring to the 15 May 2013 telephone application, enclosing a copy of the telephone application and seeking that it be fully completed, signed and returned to the Commission within 14 days of the initial application. 14

[11] On 27 June 2013, a member of the Commission’s staff spoke to the Respondent about the incomplete application. The file note records that the Respondent advised that he did not receive the 28 May 2013 letter and still wished to proceed with his application. 15 A further letter in the same terms as the 28 May 2013 letter was sent to the Respondent on that day.16

[12] Further letters in the same terms were sent by the Commission to the Respondent on 17 July 2013 17 and 29 July 2013. 18

[13] On 19 September 2013, a staff member of the Commission spoke to the Respondent, advising him of the letters sent. The Respondent advised that he had not received them. The staff member advised that a further letter would be sent and the Respondent “had until Tuesday” (24 September 2013) to respond. 19 The letter was sent on the 19 September 2013.20

[14] On 25 September 2013 the Commission received the completed and signed application.

[15] The hearing before Commissioner Johns commenced on 22 November 2013. The evidence of the Respondent raised questions as to the timing and fact of interactions between himself and Commission staff. In light of the information contained on the Commission’s database, relevant to those interactions, but not made available to the Appellant before the hearing on 22 November 2013, the Commission adjourned the hearing to allow the Appellant an opportunity to consider its position in respect of its objection to the extension of time. The matter was relisted for hearing on 12 December 2013.

The relevant statutory provision

[16] When considering whether to exercise his discretion to extend time for filing the s.394 application, Commissioner Johns was required to take into account the factors contained in s.394 of the Act. That section is in these terms:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

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

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

The decision of Commissioner Johns

[17] Commissioner Johns commenced his consideration by noting that “there were 216 days between when the termination of the Applicant’s employment took effect and when a proper application was filed with the Commission”. 21

[18] We note that there is a question as to whether the application was made with the telephone application and payment on 15 May 2013 or upon lodgement of the completed and signed application on 25 September 2013. In either case, the application was made significantly beyond the last day on which it could be made in accordance with s.394(2)(a) of the Act—14 March 2013—and required an extension of time by the Commission in accordance with s.394(2)(b) and s.394(3) of the Act.

[19] Given s.395 of the Act requires that an application to the Commission under Division 5 of Part 3–2 must be accompanied by any fee prescribed by the Fair Work Regulations 2009 (Regulations) (unless waived as provided for by the Regulations) an application that is not accompanied by the fee as prescribed by the Act is not made in accordance with the Act. 22

[20] The requirements for the completion and signing of a s.394 application arise from the Fair Work Commission Rules 2013 (the Rules), relevantly in relation to Approved forms (Rule 8) and Telephone applications (Rule 9), which includes in Rule 9(4) a requirement to return a completed and signed application form within 14 days. Rule 6 provides that the Commission may dispense with compliance with any provision of those Rules, either before or after the occasion for compliance arises.

[21] In Mr Greg Chalker v Melbourne Bus Link, 23 Commissioner Jones rejected the Respondent’s contention that the word “application” in s.394(2) of the Act is a reference to an application which is completed in all relevant respects:

“. . . construing s.394 of the Act so as to require a completed application within 14 days would not facilitate informality and flexibility and would operate unfairly as against applicants. I, therefore reject the Respondent’s submissions as to the construction of s.394(2).” 24

[22] Payment (or waiver) is required for an application under s.394 to be made, by virtue of s.395 of the Act. It is not necessary for an application to be complete and signed for an application to be made, given that requirement arises from the Rules, the requirements of which may be dispensed with under Rule 6.

[23] The Respondent’s application was made late, whether made on 15 May 2013 or on 25 September 2013. It is not necessary for us to consider dispensation with the requirements of Rule 9 in the circumstances of this matter, given our decision in the appeal.

[24] We return to the decision of Commission Johns. As required by the Act, Commissioner Johns had regard to each of the statutory considerations in s.394(3) of the Act, made findings in relation to each of them and balanced those considerations, being satisfied that there “were exceptional circumstances warranting the Applicant being allowed a further period for his application to be made” (s.394(3) of the Act). 25

[25] In relation to s.394(3)(a)—The reason for the delay, the Commissioner found that the delay was caused by a number of reasons. 26

[26] In relation to the first reason, the Commissioner found that in the circumstances it was reasonable for the Respondent to form the view that he was being afforded an opportunity to appeal if he could present new evidence and it would be unfair to penalise the Respondent for his incorrect assumption as to an appeal process as this was an unusual circumstance.

[27] In relation to the second reason for delay, the Commissioner found that there was a delay in obtaining additional information—the report from Dr Rose—directed to the appeal process, which was not the fault of the Respondent.

[28] In relation to the third reason for delay, the Commissioner found that there was a delay in the Appellant considering the report from Dr Rose, which was not the fault of the Respondent.

[29] In relation to the fourth reason for delay, the Commissioner found that the Respondent made a telephone application to the Commission for an unfair dismissal remedy within 21 days of being advised that the decision to terminate his employment “stood”. The Commissioner also found that the telephone application was incomplete and that there was a delay in regularising the application. After reviewing the communications between the Commission and the Respondent directed to fully completing the application, the Commissioner found that it would be unfair to attribute that delay to the Respondent. The Commissioner found that the administrative delay was out of the ordinary course of the Commission’s usually efficient processes and to that extent it was an exceptional circumstance.

[30] Apart from the consideration of the delay between 15 May 2013 and 25 September 2013 relating to completing and signing the telephone application, each of the reasons for delay considered by the Commissioner concerned the period between the termination and the 24 April 2013 advice to the Respondent by the Appellant confirming the decision to terminate the employment on 21 February 2013.

[31] In relation to the other matters in s.394(3) of the Act, Commissioner Johns found:

1. the Respondent first became aware of the dismissal on 21 February 2013 27 (s.394(3)(b)), but went on to find that the Respondent was “mistaken in a belief that what he considered to be an internal appeals process impacted upon the finality of the decision. However, having regard to what Mr van den Berg said to the Applicant about the preparedness of the Respondent to consider any new information this is a special case and it constitutes an exceptional circumstance”;28

2. the Respondent took action to dispute the dismissal in several ways, a consideration weighing in favour of granting him a further period to make his application 29 (s.394(3)(c) of the Act);

3. The Appellant suffered prejudice through the opportunity lost to obtain forensic evidenceand in bearing the cost of defending itself for the second time weighed against granting the Respondent “a further period to make his application” 30 (s.394(3)(d) of the Act);

4. the Respondent’s case was not one that was “without merit or lacking in any substance”, weighing in favour of granting him a further period to make his application 31 (s.394(3)(d) of the Act); and

5. the parties agreed that fairness as between the person and other persons in a similar position was not relevant in the circumstances of the matter before Commissioner Johns 32 (s.394(3)(e) of the Act).

[32] Balancing each of those considerations, Commissioner Johns was “satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for his application to be made” 33 (s.394(3) of the Act).

Consideration

[33] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 34 In GlaxoSmithKline Australia Pty Ltd v Colin Makin a Full Bench summarised the concept of public interest in the following terms:

“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters . . .”  35

[34] If the error of the decision maker relied upon by an appellant is an error of fact, then the Full Bench must be satisfied it is a “significant error of fact”. 36 It is not enough that the Full Bench would have arrived at a different conclusion to that of the original decision maker; the relevant question is whether the finding made by the decision maker was reasonably open to him or her.

[35] The Appellant raised numerous grounds of appeal against the decision of Commissioner Johns. Amongst them, in ground 10, the Appellant submitted that the Commissioner erred in finding that the Respondent’s subjective belief that he had the benefit of an appeal process, after the termination, constituted an exceptional circumstance justifying the 83 day period between the termination on 21 February 2013 and telephone application of 15 May 2013. The Appellant submitted that the decision of the Commissioner, in this respect, was inconsistent with previous authority in El Arja v Rail Corporation New South Wales (El Arja). 37

[36] We think that this appeal ground has substance.

[37] An applicant needs to provide a credible reason for the whole of the period that the application was delayed. 38 The Commissioner was required to consider the explanation of the total delay not only part of it. The delay, for the purposes of s.394(3) of the Act, is the delay from the expiry of 21 day period in s.394(2)(a) after the termination date until lodgement of the application.

[38] It was open to the Commissioner to find that the Respondent’s mistaken belief as to an appeal right, post termination, provided a reasonable explanation for the delay in lodging an application until the Appellant advised the Respondent on 24 April 2013 that the decision to terminate his employment “stood”. However, there was no basis for the Commissioner to find that the belief constituted a reasonable explanation for the delay in lodging the application between 24 April 2013 (or very shortly thereafter) and 15 May 2013, a period of a further 21 days. In this regard, we note that the Commissioner’s consideration of the multiple reasons for the explanation of the delay does not address the explanation, or lack thereof, of the reason for that further delay beyond 24 April 2013 until 15 May 2013. The Commissioner limited himself to a consideration of the explanation for the delay until 24 April 2013 and the Appellant’s consideration of additional materials, and the explanation for the delay beyond 15 May 2013. In doing so, Commissioner Johns has misapplied s.394(3)(a) of the Act and failed to direct his mind to a relevant consideration—the delay between 24 April 2013 and 15 May 2013.

[39] We also note that the Commissioner seems to have taken the view that the Respondent had a further 21 days in which to make his application after being appraised of the fact that his termination stood, on 24 April 2013. 39 This misconstrues the delay to be considered under s.394(3)(a) of the Act, which is the delay in lodgement beyond the 21 day period in s.394(2)(a) from the termination time, rather than the delay arising from the application of the 21 day period for lodgement from the expiry of an earlier period of delay which is adequately explained. A delay which is adequately explained does not restart the 21 day clock. Any further delay requires explanation.

[40] Similar circumstances arose in a matter determined by Commissioner Larkin in El Arja. 40 In that matter, the applicant had available to him a right of appeal in relation to his termination under the State Owned Corporations Regulation 2003 (NSW). The applicant lodged such an appeal on 7 October 2008, approximately two weeks after his termination of employment. He was advised that his appeal had failed on 8 December 2008, but did not lodge his s.394 application at that time.

[41] Commissioner Larkin found:

“[17] By the 8 December 2008 the applicant, if he had lodged his application with the Commission at that time, would have been approximately seven (7) weeks outside the time limit in which to lodge his substantive application. If the applicant had lodged on 8 December 2008 or the following day I may have been persuaded that the applicant had an acceptable explanation for the delay, given the reference to appeals to the TAB in RailCorp’s disciplinary outcome letter to him dated 23 September 2008 . . . I may possibly have accepted this situation as an acceptable explanation if that period was the only delay, however, it was not.

[18] The applicant lodged his application for relief in the Commission on 8 January 2009, which was approximately four (4) weeks after the TAB’s verbal decision and almost three (3) weeks after its written decision to dismiss the applicant’s appeal against his dismissal.”

[42] Commissioner Larkin then dealt with and rejected an explanation for the delay based on representative error, and concluded that she was “not persuaded that an acceptable explanation for the whole of the delay in lodging the application . . . had been made out”. 41

[43] The decision of Commissioner Larkin was upheld on appeal in El Arja. 42The Full Bench described:

● the question before Commissioner Larkin as “whether there had been a reasonable explanation for the delay in lodging between 15 October 2008 and 8 January 2009”; 43

● endorsed the submission of the Respondent in the appeal that the “21 day period ran from the date of the termination of employment—24 September 2008, not from 8 December [2008], nor from 19 December [2008]”; 44 and

● found that, but for a representative error argument introduced on appeal but not put to Commissioner Larkin, it “would have been inclined to conclude that no acceptable explanation had been advanced for the 20 day delay after the TAB’s reasons were provided”. 45

[44] That Full Bench ultimately upheld the decision of Commission Larkin, notwithstanding the new representative error argument. 46

[45] Commissioner Johns’ satisfaction that there were exceptional circumstances in relation to the period 24 April 2013 to 15 May 2013 in the absence of any explanation of that delay is inconsistent with the statute which requires lodgement within 21 days from termination unless there are exceptional circumstances. Further, it is disharmonious with decided authority. We find that Commissioner Johns failed to have regard to the delay between 24 April 2013 until 15 May 2013 and the absence of any explanation for the failure of the Respondent to make his application during that period. By failing to have regard to the explanation for the whole of the period that the application was delayed the Commissioner has not had regard to a material consideration and misapplied the law in assessing the reason for the delay.

[46] The Commissioner erred in reaching satisfaction as to the existence of exceptional circumstances necessary for the exercise of the discretion to extend time under s.394(3) of the Act. It is an error which engages the public interest.

[47] In those circumstances, we grant leave to appeal, uphold the appeal and quash the decision and order of Commissioner Johns. We will determine the Respondent’s application to extend the period for the making of his application.

Rehearing

[48] In rehearing the matter, it is necessary to have regard to each of the statutory considerations in s.394(3) of the Act, make findings in relation to each of them and balance those considerations in order to determine whether there were exceptional circumstances warranting the Respondent being allowed a further period for his application to be made (s.394(3) of the Act).

[49] As observed in paragraphs [18]—[23] of this decision, a question arises as to whether the application was made with the telephone application and payment on 15 May 2013 or upon lodgement of the completed and signed application on 25 September 2013. Without deciding the issue, we proceed in rehearing the matter on the basis that the Respondent’s application was made upon the application and payment by telephone on 15 May 2013.

The reason for the delay

[50] In this case the relevant delay is the period of 62 days between 14 March 2013—which is 21 days after the termination on 21 February 2013—and the application by telephone on 15 May 2013.

[51] The Respondent explained the delay until 24 April 2013, on the basis that he believed that the Appellant was reconsidering the termination in an appeal process, the result of which was not advised to him until 14 March 2013. There was no explanation provided of the further delay of 21 days from 24 April 2013 until 15 May 2013 when the application was made.

[52] An employee needs to provide a credible reason for the whole of the period that the application was delayed. Even if it is accepted that the delay associated with the “appeal process” is reasonably explained, in the absence of an explanation of the further delay in lodgement beyond 24 April 2013, there is no explanation for the delay.

[53] We find that, in the absence of any explanation for the delay in lodgement over the period 24 April to 15 May 2013, which is a substantial delay in itself, there is no reason for the delay. This consideration weighs heavily against the Respondent being allowed a further period for his application to be made (s.394(3) of the Act).

[54] In circumstances where an employee’s employment has been terminated but a reconsideration is sought or available under a formal internal appeal process, and the employee may wish to avail themselves of the opportunity to apply for relief in respect of unfair termination under s.394(3) of the Act, the safest course would be to meet the default position of applying within 21 days of the termination. Such action would protect their rights to challenge the termination, in the event that the reconsideration does not alter the decision to terminate the employment. Even if the particular circumstances surrounding the reconsideration constituted exceptional circumstances explaining a delay in lodgement until the outcome of the reconsideration was known, an application should be made immediately upon the outcome of the reconsideration being advised to the employee, unless there were exceptional circumstances for further delay, including an explanation for any further delay beyond that point. Even in those circumstances, the safest course would be to meet the default position of applying within 21 days of the termination.

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

[55] The Appellant’s 21 February 2013 letter to the Respondent 47 makes it clear that the Respondent was aware that his employment had been terminated at that time. Even if it is accepted that the Respondent believed that the termination was subject to review by the Appellant until 24 April 2013, he was aware of the dismissal from the time it had taken effect and was in a position to make his application from 21 February 2013. In any case, the Respondent was disabused of any belief that the termination would set aside from 24 April 2013. This consideration provides no support for a finding that there were exceptional circumstances warranting the Respondent being allowed a further period for his application to be made (s.394(3) of the Act).

Action taken by the person to dispute the dismissal

[56] The evidence establishes that the Respondent did take action to dispute the termination. He requested of Mr van den Berg an opportunity to provide further information to the Appellant to refute the basis of his termination and commissioned research to that end. The Respondent’s actions were direct and specific and had the effect of alerting the Appellant to the fact that the Respondent disputed the termination and the basis for doing so. Against that, the evidence of Mr van der Berg 48 is that in March 2013 the Respondent indicated that he was aware of his right to make an unfair termination application but did not want to “go down that path”. As a result, the Respondent’s application, when it became known to the Appellant, would not have been anticipated. Nonetheless, the Respondent’s actions to dispute the termination lends some support to the Respondent being allowed a further period for his application to be made. (s.394(3) of the Act).

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

[57] We accept the submission of the Appellant that the delay prejudices the employer beyond the normal prejudice of having to defend an application. The extensive period of time since the termination prejudices the ability of the Appellant to obtain telephone records relevant to the incident relied upon to terminate the employment. The delay has resulted in the Appellant having to defend the VEOHRC application, without recourse to argument concerning multiple applications. This consideration counts against affording the Respondent a further period for his application to be made. (s.394(3) of the Act).

The merits of the application

[58] In circumstances where there is competing evidence as to the incident relied upon to terminate the employment, which would need to be tested in arbitration, it cannot be concluded that the Respondent’s application is without merit. This consideration lends limited support to the Respondent being allowed a further period for his application to be made (s.394(3) of the Act).

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

[59] The parties agree that this consideration is not relevant in the circumstances of the present matter. 49

Conclusion on Rehearing

[60] This consideration counts against a finding that there are exceptional circumstances warranting the Respondent being allowed a further period for his application to be made (s.394(3) of the Act).

[61] Having regard to and balancing our findings in respect of the matters in ss.394(3)(a)—(f) of the Act, we are not satisfied that there are exceptional circumstances warranting the Respondent being allowed a further period for his application to be made (s.394(3) of the Act). The Respondent’s reasons for the delay in making his unfair dismissal application cannot be regarded as unusual or extraordinary in circumstances where he advanced no reason for his failure to lodge the unfair dismissal application in the Commission between 24 April 2013 and 15 May 2013. Nothing in our findings in respect of the matters in ss.394(3)(a)—(f) constitute exceptional circumstances.

Final conclusion

[62] Accordingly, we quash Commissioner Johns’ decision⁵⁰ and order 51 of 13 January 2014 and decline to allow the Respondent the necessary further period to make his unfair dismissal application. His unfair dismissal application is dismissed. An order52 giving effect to our decision will be issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

M Stephens on his own behalf.

N Harrington of Counsel for the Appellant.

Hearing details:

2014.

Melbourne:

March 14.

¹ [2014] FWC 330.

 2  PR546774.

³ Matter number U2013/9909 before Commissioner Johns.

 4   Appeal Book at p. 49.

 5   Appeal Book at pp. 109–110.

 6   Appeal Book at p.110. The report is found in the Appeal Book at pp. 50–75.

 7   Appeal Book at p. 77.

 8   Appeal Book at p. 101–107.

 9   Appeal Book at p. 103.

 10   Appeal Book at p. 101.

 11   Appeal Book at pp. 124 and 149.

 12   Appeal Book at p. 79.

 13   Appeal Book at p. 78.

 14   Appeal Book at p. 87.

 15   Appeal Book at p. 90.

 16   Appeal Book at p. 89.

 17   Appeal Book at p. 91.

 18   Appeal Book at p. 93.

 19   Appeal Book at p. 99.

 20   Appeal Book at p. 97.

 21  [2014] FWC 330 at para 31.

 22   Christine Storer v On Call Interpreters and Translations [2014] FWC 47 at paras 12–15.

 23  [2012] FWA 3399 at paras 12–18.

 24   ibid., at para 19.

 25  [2014] FWC 330 at para 47.

 26  [2014] FWC 330 at para 32.

 27  [2014] FWC 330 at para 33.

 28  [2014] FWC 330 at para 34.

 29  [2014] FWC 330 at paras 35–36.

 30  [2014] FWC 330 at paras 38–39.

 31  [2014] FWC 330 at paras 44–45.

 32  [2014] FWC 330 at para 46.

 33  [2014] FWC 330 at para 47.

 34   Section 400(1) of the Fair Work Act 2009.

 35  [2010] FWAFB 5343 at para 27.

 36   Section 400(2) of the Fair Work Act 2009.

 37  [2009] AIRC 211.

 38   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408‒409. See alsoMarschall v Home Care Plus[2013] FWC 5299 at para 29.

 39  [2014] FWC 330 at para 32(d).

 40  [2009] AIRC 211.

 41  [2009] AIRC 211 at para 24.

 42  [2009] AIRCFB 809.

 43  [2009] AIRCFB 809 at para 24.

 44  [2009] AIRCFB 809 at para 24.

 45  [2009] AIRCFB 809 at para 25.

 46  [2009] AIRCFB 809 at para 28.

 47   Exhibit A1 in matter number U2013/9909 before Commissioner Johns.

 48   Appeal Book at p. 110.

 49   Transcript at paras 328 and Exhibit R4 at para 43 in matter number U2013/9909 Commissioner Johns.

⁵⁰ [2014] FWC 330.

 51  PR546774.

 52  PR549570.

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