William Gianoncelli v Australia Wide Haulage Pty Ltd
[2024] FWC 1599
•19 JUNE 2024
| [2024] FWC 1599 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
William Gianoncelli
v
Australia Wide Haulage Pty Ltd
(C2024/2732)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 19 JUNE 2024 |
Application to deal with contraventions involving dismissal – extension of time
Issue and outcome
On 27 April 2024, Mr William Gianoncelli (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Australia Wide Haulage Pty Ltd, objected to the application on the basis that it was made outside of the 21-day period prescribed by s 366(1)(a) of the Act.
In his application, the Applicant says his dismissal took effect on 5 April 2024, therefore rendering his dismissal one day late. It is observed the Applicant had responded in the affirmative on the Form F8 that his application had been filed within the 21-day timeframe. The Respondent says the Applicant’s application is three days late, because the Applicant’s dismissal took effect on 3 April 2024.
Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
The Applicant pressed there were exceptional circumstances that warranted the grant of an extension of time. The primary reason relied upon was the hospitalisation of a member of his ‘nuclear’ family, who had experienced suicidal ideation. Given the circumstances surrounding the hospitalisation and noting that it is unclear to me that the person hospitalised consented to the disclosure of their health history in this forum, I will, for the purpose of this decision, refer to the person as ‘PH’. Insofar as it is necessary to do so, and observing that the Applicant did not seek a confidentiality order, a Confidentiality Order[3] will, nevertheless, issue under s 594(1)(c) of the Act, that the name, contact details and health details of PH will not be disclosed to any person and such information is to be kept confidential. It is further observed that the Applicant filed PH’s health information and served it on the Respondent. It is therefore incumbent upon the Respondent to ensure that the privacy of PH such that confidence is maintained regarding the material filed.
Briefly stated, I have found that the Applicant’s employment ended on 5 April 2024. It follows that the Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order[4] issues concurrently.[5] My detailed reasons follow.
Background
In light of there being a factual dispute about the date of dismissal, I decided it was appropriate to conduct a hearing. Before the hearing, directions were issued to the parties providing detailed information of what was required of both.
The Applicant relied upon his evidence and that of Ms Samantha Ashleigh Mair, his partner. Ms Mair’s witness statement amounted to three lines of evidence. It followed that she was permitted to provide viva voce evidence.
The Respondent relied upon the evidence of Mr Zoran Mlinar, Business Development and the Applicant’s Direct Manager, Mr Marty Goodall, and Mr Brandt Comyns, Director of the Respondent.
There was disagreement between the parties as to whether the Applicant had commenced employment with the Respondent on 9 January 2024, in a Business Development role or as a Sales Person. However, it appears that the Applicant was unsuited for the initial role for which he was employed and he was thereafter moved to a different position in dispatch. The Respondent submits this was because of performance issues and the Applicant alludes to not having received sufficient training for him to be successful in a new role.
The Applicant provided a detail account of what occurred the days leading up to his dismissal. An abridged version of that account follows:
a) the Applicant took personal leave form 26 March 2024 until 28 March 2024 as a result of a COVID-19 infection;[6]
b) the Applicant returned to work on 2 April 2024 following the Easter long weekend, although still unwell following his COVID-19 infection;[7]
c) the Applicant said he completed a full 11 hour day on 2 April 2024 as usual, with no mention by any staff member concerning his fitness for work;[8]
d) the Applicant reports that as he left for the day Mr Goodall informed him that a few staff members had concerns over him being sick, the Applicant said he informed Mr Goodall he felt he was acting in the best interests of the company to be there to assist ‘Rob’ whilst Mr Mlinar was off, and if he was unwell he would advise on 3 April 2024 and not come into work;[9]
e) the Applicant presented for work the next day feeling better, after having worked three hours he was approached by Mr Comyns and told that Mr Goodall had told him not to come into work on 3 April 2024, which the Applicant said he disputed as he had seen Mr Goodall when first arriving to work and there had been no mention as to why he had attended work that day;[10]
f) Mr Comyns informed the Applicant to go home and await a call from Mr Mlinar regarding what was to happen next;[11]
g) the Applicant confirmed he received a call from Mr Mlinar at 2.00 PM that day to discuss a job and Mr Mlinar was unaware that the Applicant had been stood down and had no further information; and
h) by Thursday afternoon, there was still no clear information so on Friday, the Applicant took it upon himself to go to the office to discuss the matter with Mr Comyns, and he was informed by Mr Comyns that his employment had been terminated.[12]
In his submissions, the Applicant acknowledged that discussions had occurred on 3 and 4 April 2024, presumedly with Mr Mlinar, but that they were simply discussions around employment with a great degree of uncertainty.
The Applicant gave further evidence that was supported by a document titled ‘Discharge Summary’ that PH had been admitted to hospital on 21 April 2024 and discharged home on 26 April 2024. The Discharge Summary recorded that PH presented to the Emergency Department accompanied by Ms Mair. Ms Mair gave evidence that for the first 48 hours of PH’s admission, she stayed with PH. According to Ms Mair, the Applicant assisted by coming and going to the hospital to facilitate day trips.
According to Mr Mlinar, the Applicant had the last week off in March (presumedly 2024), having informed Mr Mlinar he was unwell.[13] Mr Mlinar stated that at no stage did the Applicant mention that he had COVID-19.[14]
Mr Mlinar said that after the Easter break, he became unwell but came into work on Tuesday, 4 April 2024, to make sure that the Applicant attended.[15] Mr Mlinar said that the Applicant arrived 15 minutes late and on arrival, he informed the Applicant that he was unwell and was going home.[16] Mr Mlinar said that he had asked the Applicant if he was feeling better and the Applicant had said ‘yes’.[17]
Mr Mlinar said he had no further communication with the Applicant until the afternoon of Wednesday, 5 April 2024, when he called the Applicant about a particular job that had come through. According to Mr Mlinar, the Applicant informed him that he had been told to go home by Mr Comyns and did not know why.[18] Mr Mlinar said that he immediately called Mr Comyns to ascertain what had occurred and was informed by Mr Comyns that the Applicant had slept all day Tuesday and had not completed most of his tasks.[19] Mr Mlinar said that Mr Comyns instructed him to let the Applicant know that he was no longer required and that ‘we would sort out his entitlements’.[20]
Mr Mlinar said that he called the Applicant back on Wednesday afternoon and advised him that he would be terminated and ‘we would sort out his entitlements’.[21] Mr Mlinar added that the Applicant seemed shocked and asked why to which Mr Mlinar said, he explained to the Applicant there were issues with his performance and that he could not be asleep all day whilst at work, noting several witnesses had observed him sleeping.[22] Mr Mlinar told the Applicant to hand in his uniform and phone on Friday, as Mr Mlinar thought that he would have recovered from his COVID-19 by then and would be back at work.[23]
Mr Mlinar said that the Applicant called him again on Thursday asking what was going on, and Mr Mlinar said that he reiterated to the Applicant that he no longer had a position at the Respondent business.[24]
Mr Goodall gave evidence that on Tuesday, 2 April 2024, he was approached by two colleagues and informed that the Applicant kept falling asleep.[25] One of the colleagues reported to the Applicant (a person by the name of ‘Rob’), and therefore did not know what to do for the day.[26]
Mr Goodall said that later in the day on 2 April 2024, he walked into the office and found the Applicant fast asleep at the desk.[27] Mr Goodall said he called Mr Comyns who asked him to speak to the Applicant and tell him to have Wednesday off.[28] Mr Goodall said that he spoke to the Applicant later that day and explained that it was not a good look falling asleep, especially when he was meant to be training someone, and the Applicant replied that he was just tired.[29] Mr Goodall said he told the Applicant that it would best if he did not come in, and that he would help with Rob on Wednesday, 3 April 2024.[30]
According to Mr Goodall, the Applicant showed up the next day but he was in the yard setting up drivers; Mr Goodall said that upon his return to the office, he found out that Mr Comyns had sent the Applicant home.[31]
Mr Comyns said that Mr Mlinar had dismissed the Applicant on 3 April 2024 over the telephone.[32]
In Mr Comyns’ written statement, there is some confusion regarding events that purportedly unfolded on 5 April 2024 and 8 April 2024.
In respect of events of 8 April 2024, the Applicant had presented to the Respondent business and had proceeded to record Mr Comyns, absent Mr Comyns’ knowledge and therefore consent. Reasons were provided on transcript as to why I declined to admit the audio recording into evidence.
Turning to the events on 5 April 2024, Mr Comyns does not deny the Applicant having presented to the Respondent business that day and having informed the Applicant that his employment had been terminated. Albeit Mr Comyns said he suggested to the Applicant that as he was no longer employed by the Respondent, as advised by Mr Mlinar on 3 April 2024, the Applicant should leave (the Respondent business) immediately.[33] It appears that Mr Comyn’s written statement conflates events of 5 April 2024 with 8 April 2024.
Consideration
3.1 Date when the Applicant’s employment came to an end
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 3 April 2024. For his part, the Applicant says that it was 5 April 2024.
In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act, until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[34]
In giving his evidence at hearing, Mr Mlinar notes that on Wednesday, 3 April 2024, he was sick with COVID-19 to the point that he was bedridden. Mr Mlinar gives evidence that initially he had called the Applicant about a particular job that had come through and that the Applicant advised that Mr Comyns told him to go home on Wednesday morning. Mr Mlinar said that he called Mr Comyns who had told him that the Applicant had been sleeping at work the day before, which is why Mr Comyns had ‘stood’ the Applicant down. Mr Mlinar said that he called the Applicant back and asked if this was right and why that happened, and that was when he let the Applicant know that he was ‘probably not going to have a position here after that’, and that when Mr Mlinar was better, they would discuss entitlements.
In giving his evidence at hearing, Mr Mlinar again reiterated in cross examination that he had said to the Applicant that he ‘probably wouldn’t’ (have a position) and that when he got better, they would talk about his entitlements and ‘stuff like that’. Mr Mlinar emphasised that at that stage, the Applicant no longer had a position, and whilst he could not recall whether he said ‘probably’ or not, he knew he would let the Applicant know he no longer had a position and that they would talk about entitlements later.
Insofar as a discussion was held between the Applicant and Mr Mlinar on Thursday, 4 April 2024, regarding the Applicant’s dismissal, Mr Mlinar said he reiterated to the Applicant in the phone call what he had said on the Wednesday, that was, that the Applicant no longer had a position. The Applicant asked Mr Mlinar why he had suggested that the Applicant come into work on the Friday to speak to Mr Comyns as it would serve a beneficial purpose, to which Mr Mlinar replied, that he had told the Applicant to come into work on the Friday to hand in his uniform and the phone, as he no longer had a position.
In respect of the Applicant’s ongoing employment, I am unpersuaded that Mr Mlinar recalls precisely what he informed the Applicant on Wednesday, 3 April 2024. In cross examination, Mr Mlinar speaks of informing the Applicant that he was probably not going to have a position. I do not level criticism at Mr Mlinar for being unsure what he precisely communicated to the Applicant on 3 April 2024 – he was after all bedridden at the time with COVID-19. However, what was communicated to the Applicant is important in determining whether the Applicant knew he had been dismissed.
At this point, I make the following observations. In his application the Applicant stated:
Brandt advised I was to go home and await a call from Zoran regarding what was to happen next. I received a call from Zoran at 2PM that day to discuss a job, he was unaware I had been stood down and had no further information. By Thursday afternoon, there was still no clear information so I took it upon myself to come to the office to discuss with Brandt on Friday…[35]
The Applicant, in his written materials, does not refer to the discussion held with Mr Mlinar later in the day on Wednesday, 3 April 2024, nor the discussion held on Thursday, 4 April 2024. He does, however, refer to having texted Mr Mlinar on the Wednesday, but did not produce such evidence at hearing. At hearing, the Applicant appears to have conceded that there were discussions with Mr Mlinar on 3 April 2024 (subsequent to the discussion at approximately 2.00 PM) and 4 April 2024, but reports there was a lack of clarity and there was no definitive ‘you do not have a job’.
On balance, I am unpersuaded by the Applicant’s account of events over the course of 3 to 5 April 2024. In my view, there is an obligation on the Applicant to make full and proper disclosure of all circumstances, and I am unconvinced that occurred. At that same time I am unconvinced that Mr Mlinar’s evidence supports a finding of having clearly communicated to the Applicant he was dismissed on 3 and 4 April 2024. Whilst I find that the Applicant and Mr Mlinar had two telephone discussions on Wednesday, 3 April 2024, and one on Thursday, 4 April 2024, as reported by Mr Mlinar, it is not open to find that the Applicant was unequivocally informed by Mr Mlinar that his employment had been terminated as of 3 April 2024 or 4 April 2024. In such circumstances, I am unable to find that the Applicant knew he had been dismissed as of those dates.
It follows that I find that the Applicant knew he had been dismissed as of 5 April 2024, therefore rendering his application under s 365 of the Act, one day late.
3.2 Extension of time
Consideration now turns to whether to extend the 21-day period within which the Application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
It has been said that proceedings not commenced in time should not be entertained.[36] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[37]
In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[38] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[39] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[40]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
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.[41]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’.
3.3 Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[42] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[43]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[44] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[45]
The Applicant gave evidence that the reason giving rise to the delay was that PH was admitted into hospital on 21 April 2024 until 26 April 2024. There is no evidence led as to what the Applicant did between the dismissal date and up until the 21 April 2024, to advance the application being lodged in the Commission.
The Respondent, correctly in my view, posed the question why PH’s admission into hospital hindered the Applicant’s preparation and filing of his application before the deadline was due. Whilst the Discharge Summary for PH supports that PH was hospitalised in the aforementioned period, it also details that PH presented to the ‘ED’ with Ms Mair and Ms Mair gave evidence of having been with PH for the first 48 hours, but after that time persons were not permitted to stay with PH. It is not evident from the Discharge Summary or Ms Mair’s evidence, that the Applicant presented to ‘ED’ with PH or that he remained in hospital with PH.
Ms Mair gave further evidence that supported the Applicant’s evidence that there were multiple trips to the hospital during the period, in which he was involved. However, whilst not minimising what occurred concerning PH’s health in the months leading to the hospitalisation and the hospitalisation itself, and appreciating that the Applicant speaks of suffering from mental anguish (albeit not declaring himself as being unfit pursuant to a medical certificate), the completion of what is essentially two pages of substantive information was not, in my opinion, so onerous that the Applicant could not have completed it within the requisite timeframe. As it is, on 8 April 2024, the Applicant had sufficient time and presence of mind, to appear at the premises of the Respondent business and record Mr Comyns without Mr Comyns’ consent.
Whilst the period of the delay was one day, as was observed in Ozsoy v Monstamac Industries Pty Ltd[46] the fact that an application was lodged only one day late, is not the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.[47]
I do not accept that the matter relied upon by the Applicant to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application.
On balance, I find the reason for the delay is not an acceptable one. I have come to this conclusion having considered the circumstances from the time of the dismissal and the period of the delay. As I do not accept that the matter relied upon by the Applicant to be an acceptable or reasonable explanation for the delay in filing his application, this weighs against a finding of there being exceptional circumstances.
3.4 Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time.[48]
There is evidence from the Applicant, Mr Goodall, and Mr Comyns, that the Applicant presented to the Respondent business on 8 April 2024. Mr Goodall gives evidence that he was walking past Mr Comyns’ office when he was called upon to verify something that had been said; he observed that the Applicant was getting aggravated at Mr Comyns and Mr Comyns had asked the Applicant to leave the premises at least four times.[49] Mr Goodall also refers to having said to the Applicant that because he was seeking legal advice as per his email, that he should not be on the premises or trying to discuss matters.
Given the timing of the Applicant’s visit, noting what Mr Goodall had to say in addition to Mr Comyns’ evidence that the Applicant ‘wanted to tackle me about his dismissal’ and ‘he challenged me on his being dismissed’,[50] on balance, I am satisfied that the Applicant took some action to dispute the dismissal taking effect on 5 April 2024 and this weighs in favour of a finding that there are exceptional circumstances.
3.5 Prejudice to the employer
Prejudice to the employer will weigh against granting an extension of time.[51] However, the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’.[52]
The Respondent submits that it does not assert there is any particular prejudice and I agree that there would be no prejudice to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21 day time period. In the present case, I consider this to be a neutral factor.
3.6 Merits of the application
The Commission considered the principles applicable to the extension of time discretion under s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra-Network Technology Group v Kornicki,[53] stating:
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.[54]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[55] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. I have adopted this reasoning.
The Applicant’s case on the merits is twofold. First, he was dismissed because of a temporary absence from work having taken personal leave from 26 March 2024 to 28 March 2024. Second, on 5 April 2024, he requested the attendance of a support person for the discussion which was rejected, perceived by Mr Comyns as a threat and formed a basis for his dismissal.
The Respondent submits that the Applicant was dismissed because of his ongoing performance issues, including sleeping at work - the straw that broke the camel's back. The Respondent denies it possessed any ulterior motive to dismiss the Applicant based on his exercise of workplace rights or temporary absence from work and adjures that the application is plainly weak, and this consideration should weigh against the extension of time.
The reason for the Applicant’s termination of employment involves the resolution of contested issues of fact which I consider would only be able to be determined after a full hearing on the merits, including more fulsome evidence and the cross examination of relevant witnesses. I also apprehend that the arguments and counter arguments relating to whether the general protections provisions have been breached would most certainly be further developed.
In these circumstances, I am satisfied that the merits of the application is a neutral consideration in relation to whether or not I should extend time for the application to be made.
3.7 Fairness as between the applicant and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[56] considered this criterion and said:
Cases of this kind will generally tern on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.[57]
The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
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. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
I have considered each of the matters specified in s 366(2) of the Act. Having weighed each and considered them collectively, I am not satisfied that there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
I have not been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s 336(2) and I decline to exercise my discretion to extend the time for the Applicant to make his application.
Accordingly, the application is dismissed and an Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
William Gianoncelli, the Applicant
James Duffy for the Respondent
Hearing details:
2024
Perth (by video):
12 June.
[1] Fair Work Act 2009 (Cth), s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] PR776187.
[4] PR776188.
[5] PR760250.
[6] Digital Hearing Book, 4 (DHB).
[7] Ibid 5.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Witness Statement of Zoran Mlinar, 70 (Mlinar Statement).
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.71.
[25] Witness Statement of Marty Goodall, 72 (Goodall Statement).
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Witness Statement of Brandt Comyns, 73 (Comyns Statement).
[33] Ibid.
[34] (2016) 262 IR 60, 79 [48].
[35] DHB (n 6) 5.
[36] Nulty v Blue Star Print Group Australia Pty Ltd[2010] FWA 6989, [20].
[37] Ibid [21].
[38] (2011) 203 IR 1, 6 [15].
[39] Ibid 5 [13].
[40] Ibid 5–6 [13].
[41] (2018) 273 IR 156, 165 [38] (emphasis in original).
[42] Ibid 165 [39].
[43] Ibid.
[44] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[45] Shaw v Australia and New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12].
[46] [2014] FWC 479, [30] (Ozsoy).
[47] Ibid.
[48] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 (Brodie-Hanns).
[49] Goodall Statement (n 25) 72
[50] Comyns Statement (n 32) 73-74.
[51] Brodie-Hanns (n 48) 299-300.
[52] Ibid.
[53] (1997) 140 IR 1.
[54] Ibid 11.
[55] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]-[38].
[56] [2016] FWCFB 6963.
[57] Ibid [31].
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