Tony Stepanoski v Primo Foods Pty Ltd
[2023] FWC 2752
•20 OCTOBER 2023
| [2023] FWC 2752 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tony Stepanoski
v
PRIMO FOODS PTY LTD
(C2023/3460)
| COMMISSIONER P RYAN | SYDNEY, 20 OCTOBER 2023 |
Application to deal with contraventions involving dismissal
Introduction
This decision concerns an application by Mr Tony Stepanoski (Stepanoski/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, Mr Stepanoski stated his employment with Primo Foods Pty Ltd (Respondent) commenced on 13 March 2023 and that his dismissal took effect from 19 May 2023.
The Application was made on 14 June 2023. The Application was lodged in portable document format (PDF) as an attachment to an email sent by the Applicant at 8:53pm. Included in the PDF file was a copy of the Applicant’s letter of termination and a Service NSW Receipt dated 6 June 2023.
Although the letter of termination is dated 19 May 2023 and states that the termination of the Applicant’s employment was effective immediately, the Respondent did not issue the letter of termination until 22 May 2023. The Respondent accepts that the effective date of dismissal was 22 May 2023.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). Based on an effective date of dismissal of 22 May 2023, the period of 21 days ended at midnight on 12 June 2023. The Application was therefore made 2 days outside the 21 day period.
The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard on 4 August 2023.
The Applicant represented himself. The Respondent was represented by Ms B Sakrzewski-Hetherington, the Respondent’s Group Legal Counsel – Employee Relations. To the extent that it was required, I granted permission to the Respondent to be represented by Ms B Sakrzewski-Hetherington, as I was satisfied that the precondition in set out in s.596(2)(a) of the FW Act had been met and that it was appropriate to exercise my discretion to grant permission for the Respondent.
For the reasons that follow, I decline an extension of time under s.366(2).
Applicant’s materials and compliance with directions
The Applicant was directed to file materials in support of his application for an extension of time by 14 July 2023. The Applicant did not file any materials in accordance with this direction.
On 17 July 2023, and after being prompted by the Respondent as to the lack of any materials filed, the Applicant sought an extension of three weeks. This was refused however the Applicant was granted an extension until 21 July 2023.
On 21 July 2023, the Applicant made another request for an extension to file materials and submitted a medical certificate in support. The medical certificate is dated 21 July 2023 and reports the date of illness onset as 29 May 2023. The certificate states that the Applicant is unfit to attend work from 21 June 2023 until 21 July 2023.
The Applicant was granted an extension until 28 July 2023 to file his materials. On 28 July 2023, the Applicant made a further request for an extension to file materials due to illness and other personal matters. The Applicant did not provide any medical evidence in support of his request. However, taking into consideration the personal matters raised by the Applicant, I granted a further extension until 1 August 2023. The Respondent was directed to file its materials by 3 August 2023.
On 1 August 2023, the Applicant filed three emails. Attached to one of the emails were photographs of various documents including: payslips; a copy of the Application; correspondence from iCare; and medical certificates. The text of the documents was blurry and could not be read. The Applicant was directed to refile this material in a readable format. The Applicant did not refile this material. The two other emails were not relevant to the issue before me.
In response to the matter of the Applicant’s being raised by the Commission during the proceedings, the Applicant stated that he had filed materials comprising 189 pages on 7 July 2023.[1]
There was no record of this material having been filed with the Commission or served on the Respondent. I then granted the Applicant a short adjournment to resend that material to my Chambers and the Respondent.
During the adjournment, the Applicant sent 48 email communications to my Chambers, many of which were either not relevant to the issue for determination before the Commission or were related to other proceedings.[2] Furthermore, there was no document (or bundle of documents) comprising 189 pages.[3]
Later in the proceedings, the Applicant sought to tender a 189-page bundle of text messages between him and various employees of the Respondent, of all which pre-dated his dismissal.[4]
After reviewing this material, I refused to admit it into evidence as it was not relevant to the issue of whether an extension of time should be granted under s.366(2). For example, the first page was a text message from the Applicant wishing a former colleague a speedy recovery from leg pain.[5]
Of the 48 emails sent to my Chambers during the adjournment, documents attached to the Application, and materials filed prior to the hearing, the following documents were admitted into evidence:
· A copy of an email dated 23 June 2023 (8:14am) sent by the Applicant to [email protected] (Exhibit 1);
· A copy of an email sent on 22 May 2023 at 4:19pm by the Applicant to Mr George Tran (the Respondent’s HR Business Partner – Operations) and Others (Exhibit 2);
· A copy of an email sent on 1 June 2023 at 2:56pm by the Applicant to Mr Tran and Others (Exhibit 3); and
· Service NSW Receipt dated 6 June 2023 (Exhibit 4).
Respondent’s s materials
On 3 August 2023, the Respondent filed a witness statement of Montserrat Martos Oliva, the Respondent’s human resources manager (Exhibit 5), and an outline of submissions.
What date was the application made?
In the proceedings, the Applicant contended that an application was made on 6 June 2023 and was therefore within 21 days after the dismissal took effect.[6]
The Applicant stated that he attended the Service NSW Bankstown Service Centre on 5 June 2023 and obtained a blank application form which he completed at home later that day.[7]
The Applicant stated that on 6 June 2023, he attended a Service NSW Service Centre and although he was initially advised that Service NSW could not assist him in lodging the application form with the Commission, the Applicant stated that a staff member later took the application form and sent it to the Commission.[8] In support of this evidence, the Applicant relies on Exhibit 4. Exhibit 4 is a service receipt/ticket for the Service NSW Bankstown Service Centre dated 6 June 2023 at 12:32pm. The Applicant described this as “evidence showing [the Commission] that I’ve lodged it on the 6th.”[9]
The Applicant stated he contacted the Commission a “couple of days later” to check whether his application had been received. The Applicant’s evidence in relation to this enquiry is as follows:
Where did they send it? ‑They told me GFC - FWC, the Fair Work Commission, which is why I assumed that you guys have got it. I then on, I’m guessing the 5th or the 4th, or a couple of days later, I rang the Commission to find out have they received it, blah, blah, blah, ‘Am I all sweet, did I come within that 21 days?’ They said, ‘Yes’, and that was it. This is where the whole confusion - - -.[10]
Consideration – what date was the Application made?
There can be doubt that the date the Application was made was 14 June 2023. The issue is whether an application was made on an earlier date, and in particular, on or around 6 June 2023. For the following reasons, there is no basis to find that an application was made by the Applicant (or by Service NSW on his behalf) prior to 14 June 2023. In coming to this conclusion, I found the Applicant to be an unsatisfactory witness who gave inconsistent and unreliable evidence.
The Applicant’s evidence goes no higher than a bare assertion that a Service NSW staff member took the application form and sent it to the Commission.[11] There is no record of any application filed by Service NSW on behalf of the Applicant on 6 June 2023, and the Applicant did not provide any documentary evidence, such as a copy of email correspondence or a facsimile transmission report, that an application had been made on that date or otherwise prior to 14 June 2023.
Although the Applicant tendered a service ticket/receipt for the Service NSW Bankstown Service Centre[12] in support of his contention that an application was made on that date, the Applicant later stated that the application form had been sent by a Service NSW staff member from its Chatswood Service Centre. In this respect, the transcript records the following exchanges:
PN515
Was this at Bankstown or Chatswood?---It could have been at either. According to this I was in Bankstown. Previously it might have been out of Chatswood.
…
PN523
That’s a ticket for - - -?---That’s a ticket that I thought that the people at Service’s, the kind - it was Chatswood - the kind people at Chatswood told me that they had sent my application to FWC, which is Fair Work Commission, which is the reason why I get this piece of paper. Why would you even have this piece of paper if it wasn’t in my application.
PN524
…So far as a representative Service NSW informed you that they were sending an application on your behalf to the Fair Work Commission you say that occurred in Chatswood? ‑Correct.
…
PN559
So your evidence before, and tell me if I’m wrong, was that you said that the kind people at Chatswood submitted your application for you on 6 June?---Yes.[13]
The Applicant’s version of events that a Service NSW staff member filed an application on his behalf on 6 June 2023 is inconsistent with the following explanations:
· On 23 June 2023, the Applicant sent correspondence to the Commission in response to being informed that the Application was lodged late and would be allocated to a Commission Member for determination in which the Applicant stated:
Dear Commissioners or whoever it may concern,
If I lodged my application on the 5/6/23 at Services NSW At Bankstown Centre I spoke via telephone with a female customer service representative at the commission located in the city centre of Sydney which she explained that it would be okay for me to send my application through via email using photographs using my personal mobile phone which I have done so as I thought like a previous matter I have lodged...[14]
(emphasis added)
· During the proceedings, the Applicant gave the following evidence:
PN500
So you obtained a copy, completed it on the 5th. Then you went to Service NSW - - -?---I went home, filled it out. Went back the next day, and that’s when I thought that they would do it for me, but then they said, no - in Chatswood where I used to live they’d always do everything for me, but at Bankstown they told me to piss off. I don’t know why.
…
PN502
They told you, you had to lodge it yourself?---(Indistinct), that’s it. And that was it, and I walked away. Then I contacted Fair Work Commission and then the lady over the line, over the telephone told me what to do, which is what I did.
PN503
And your application was received by email on 14 June?---Sorry, if I was there on that day why would it come on the 14th? Why wouldn’t it come on the same day?
PN504
I am looking at the email that you sent to the Commission?---Here’s my reason. I went back to the counter and one other lady sent it on my behalf on the same day, on the 6th, which is why I added that into the paperwork.[15]
(emphasis added)
Most tellingly, the Applicant was unable to explain why he sent the Application by email to the Commission on 14 June 2023 when, on his version of events, a staff member of the Commission had confirmed receipt of an application ‘a couple of days’ after 6 June 2023. The transcript records the following exchange:[16]
PN595
MS SAKRZEWSKI-HETHERINGTON: I just want to clarify again, Mr Stepanoski, that your evidence is still that you filed with the assistance of Service NSW your application on 6 June; is that right?---You didn’t hear me earlier?PN596
I am wanting to clarify that I understand correctly?---Yes. That’s clarified now, yes.
PN597
Can you tell me why you sent it to the Commission again on the 14th?---I don’t know.PN598
There wouldn’t have been any need to send it again, would there?---Well, I’m not sure. I don’t - I really don’t remember.PN599
Wasn’t your evidence before that you called the Fair Work Commission and you couldn’t remember exactly how many days afterwards, the number of days - - -?---Before or after, yes, I rang.PN600
A couple of days afterwards?---Yes.PN601
And that they said something to the effect of, ‘It’s all good’?---Well, I guess if you go into a government department such as Service NSW and you expect a document to be sent, which is what they told me, and then I followed it up with a phone call - - -PN602
To the Commission?---Like I said at the start, to the Commission, yes, and I’m not very good with emails. I think I brought that to everyone’s attention early.PN603
Mr Stepanoski, if they had received the application and you had had this conversation with a member of the Commission to confirm - - -?---I really don’t remember. I really don’t remember what happened.PN604
So now you don’t remember if you had a conversation with the Fair Work Commission?---No, I don’t - actually I don’t remember. I think I brought to the court’s attention I don’t remember what I ate yesterday, and I’ve had a bit of a brain snap and I don’t remember what happened in May of this year.PN605
But you’ve given evidence, Mr Stepanoski, on two occasions now - - -?---Yes.PN606 - - - specifically about a conversation that you said you had with a member of the Fair Work Commission staff - - -?---Yes, I spoke to someone - - -
PN607
- - - where they confirmed shortly after - - -?---I don’t remember what they confirmed or denied, but what I do remember - - -PN608
I think your evidence before, Mr Stepanoski, was - - -?---Yes, what did it say?PN609
- - - ‘It was all good. It was all sweet, it was all good’?---Yes. Well, there you go. Well, if I’ve said that - if I’ve said that as evidence then there is evidence.PN610
And you just can’t remember why it was that you filed it again on the 14th?---I can’t remember. No, I can’t remember.(emphasis added).
The Application was lodged as an attachment to an email. While the Applicant gave inconsistent evidence as to who scanned the document, he ultimately agreed that he scanned the Application using the ‘camscanner app’ on his mobile telephone.[17] The file properties of the PDF file identify that it was created at 1:31pm on 8 June 2023.
Having regard to the Applicant’s evidence, the contention that a Service NSW staff member sent an application to the Commission on his behalf on 6 June 2023 is simply unacceptable. I reject it.
The only Application before the Commission is the Application made on 14 June 2023.
In my view, and based on the evidence before me, the Applicant sought the assistance of Service NSW to lodge an application and was advised that they do not provide assistance to file documents in the Commission. That is consistent with the version of events provided by the Applicant in Exhibit A1, which he initially confirmed during the proceedings.[18] That is also consistent with the services provided by Service NSW which provides information and assistance to persons in relation to matters in New South Wales Courts and Tribunal.[19]
Sometime thereafter the Applicant contacted the Commission and was advised that he could lodge an application by taking photographs of the completed application form and sending it to the Commission by email.[20]
The Applicant scanned the completed application form on 8 June 2023 and lodged the Application by email on 14 June 2023.
The consequence of my findings is that the only application before the Commission is the Application which was made on 14 June 2023: 2 days outside the 21 day period.
Accordingly, the Applicant will require an extension of time.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[21] Exceptional circumstances may 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.[22]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[23]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however 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 an applicant’s favour, however all of the circumstances must be considered.[24]
The only reasons advanced by the Applicant for the delay are injury (or medical incapacity) and caring for his mother. [25]
In relation to the reason of injury, the Applicant gave the following evidence:
PN517
And the injury is - there was a medical certificate you filed with my chambers in July, which said you were unfit from June - - -?---Yes, I’ve got internal - internal bruising.
PN518
Referred to an injury with your ribs?---My three fractured ribs, yes, and internally.
PN519
And when did that injury occur?---A while back. Previous to this date.
PN520
While you were still employed with Primo?---No.
PN521
So after termination?---After termination. I think we were - what was it - it was the week before I went to Primo to collect my belongings. I was walking in Parramatta and I got assaulted by a number of people, and I had three broken ribs and I had to get hospitalised, blah, blah, blah.[26]
Medical Incapacity
The Applicant submitted that a reason for the delay was that he was injured after being assaulted by a number of people in Parramatta.
The Applicant referred to the medical certificate which he filed on 21 July 2023 in support of his application for an extension of time to file his materials. As noted above, that medical certificate is dated 21 July 2023 and states the Applicant is unfit to attend work from 21 June 2023 until 21 July 2023.
In Victor Blanco v White Bathroom[27] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).[Footnotes omitted]
I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit.
The medical certificate does not certify that the Applicant was incapacitated such to prevent the filing of the Application within the 21 day period, rather it is limited to the Applicant being unfit to attend work. Furthermore, the period over which the Applicant was unfit to attend work was from 21 June 2023 until 21 July 2023, a period which occurred after the Application had been made.
It is also important to note that during the 21 day period, the Applicant was able to attend Service NSW Service Centres and conduct “other business.”[28] The Applicant has not explained how any injury prevented him from making the Application within time, but did not prevent him from engaging in the conduct of other business.
In the absence of medical evidence supporting incapacity such to prevent the filing of the Application, I do not consider the Applicant’s injury (or medical incapacity) is to be an acceptable and reasonable explanation for the delay.
Caring for his mother
Beyond the bare assertion that his mother required care during the period following his dismissal, the Applicant has not explained how this prevented him from lodging the Application within time but did not prevent him from engaging in the conduct of other business.
I do not consider this is to be an acceptable and reasonable explanation for the delay.
Reason for the delay - conclusion
For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[29]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[30]
On 1 June 2023, the Applicant sent correspondence to Mr Tran advising that he intended to file a general protections application in the Commission.[31] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
The Respondent submitted that it would suffer prejudice if an extension of time were granted in defending an application that it would not otherwise be required to defend.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the Application
The FW Act requires me to take into account the merits of the Application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[32] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
T Stepanoski, Applicant.
B Sakrzewski-Hetherington, for the Respondent.
Hearing details:
2023.
Sydney:
4 August.
[1] Transcript at PN342-PN412.
[2] A number of email communications related to the matter of Stepanoski v Perfection Fresh Australia Pty Ltd (C2023/902).
[3] Transcript at PN430-PN479.
[4] Transcript at PN628-PN635.
[5] Transcript at PN628-PN668.
[6] Transcript at PN467, PN522, PN525-PN526, PN545.
[7] Transcript at PN497-PN500.
[8] Transcript at PN497-PN514,
[9] Transcript at PN1018.
[10] Transcript at PN514.
[11] Transcript at PN500-PN504; PN512-PN513;
[12] Exhibit A4.
[13] Transcript at PN515, PN523-PN524, PN559.
[14] Exhibit A1.
[15] Transcript at PN500-PN504.
[16] Transcript at PN595-PN610.
[17] Transcript at PN550-PN555.
[18] Transcript at PN502.
[19] See See Exhibit A1 and Transcript at PN502.
[21] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[22] Ibid.
[23] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[24] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[25] Transcript at PN265, PN277, PN478, PN516-PN521 and PN1038.
[26] Transcript at PN517-PN521.
[27] [2021] FWC 4694 at [44]-[51].
[28] Transcript at PN513.
[29] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[30] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[31] Exhibit A3.
[32] See paragraph [44] above.
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