Zina Simeon v Barkers Fresh Produce

[2019] FWC 4716

[2019] FWC 4716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zina Simeon
v
Barkers Fresh Produce
(U2019/3703)

COMMISSIONER WILSON MELBOURNE, 8 JULY 2019

Application for an unfair dismissal remedy – extension of time – exceptional circumstances – application dismissed.

[1] This matter concerns an application made by Zina Simeon alleging unfair dismissal against his former employer, Barker Fresh Produce (BFP). Ms Simeon’s effective date of dismissal was 5 March 2019 when she resigned from her position and, subject to the note below, her unfair dismissal application was received in the Fair Work Commission on 2 April 2019.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Ms Simeon’s application was made outside of the statutory time limit, with it having been made 7 days after the expiry of the 21 day time period allowed for by the Act, which ended on 26 March 2019.

[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Simeon’s application. BFP objects to there being an extension of time granted to Ms Simeon arguing that there are not exceptional circumstances for the extension of time to be granted owing to ignorance of her rights. BFP has also raised objections to Ms Simeon’s application on the grounds that she was not dismissed but resigned from her position, which she accepts. 1 However, given my findings as to Ms Simeon’s application for an extension of time, it is unnecessary for me to determine this matter.

[4] Evidence was led by Ms Zina Simeon on her own behalf and by Ms Jasmine Mustchin Financial Controller for BFP, the Respondent.

[5] Andrew Jewell, lawyer for McDonald Murholme appeared on behalf of the Respondent. Permission for the Respondent to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 2 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.3

[7] I am satisfied on material before me that, for the reasons set out below, there are not exceptional circumstances to Ms Simeon’s case and an extension of time should not be granted to Ms Simeon for the making of her application.

BACKGROUND

[8] The parties are relatively agreed on the facts of the dispute. Ms Simeon commenced working for BFP in May 2016 as an Accounts Payable Officer. From as early as May 2018 Ms Simeon reported to senior management feelings of bullying and harassment from her colleagues which culminated in her contacting WorkSafe on 27 February 2019 and making a complaint of workplace bullying and stress. 4 WorkSafe as a result, provided Ms Simeon with a ‘Summary of Events’ form to complete dated 28 February 20195 in order to initiate the application which, Ms Simeon submits she received on 1 March 2019.6 Mr Simeon completed the form and returned it to WorkSafe on 5 March 2019.

[9] Also, on 5 March 2019, Ms Simeon resigned from BFP citing her reasons as being due to ‘stress and health decline’. Ms Simeon communicated her dismissal in person and by email to Jasmine Mustchin the Financial Controller at BFP. Her written resignation is as follows:

“Hi Jasmine,

I would like to notify you that I am resigning from my position as an Accounts Payable Officer from Barkers Fresh Produce on Tuesday March 5^th 2019.

I am resigning due to experiencing levels of stress and anxiety within the team and the workplace as we have discussed in recent times.

Many thanks for the opportunity and all the best,

Zina-Isabella Simeon” 7

[10] Ms Simeon submits that at this time “I was unaware of any avenues via the Fair Work Commission and therefore, did not seek this right away”. 8 On 18 March 2019 Ms Simeon contacted WorkSafe to ensure that her form had been received. She was advised that her form had been received and that an inspector would be in contact with her once the form had been examined. On 27 March Ms Simeon was contacted by an inspector of WorkSafe to arrange a meeting with Ms Simeon on 29 March 2019. During the meeting on Friday, 29 March 2019:

“During my meeting with [WorkSafe Inspector’s name removed], he explained how WorkSafe Victoria operate and confirmed that WorkSafe Victoria do not assist in providing monetary compensation of any kind and would need to go through the Fair Work Commission as it may be in line of Unfair Dismissal. He confirmed that WorkSafe Victoria are to ensure that employers follow a duty of care to their employees. As I no longer was an employee, he could only do so much to assist but not in regards to compensation for stress and for my emotional state.” 9

[11] As a result of this advice, and on the same day, Ms Simeon contacted the Fair Work Commission and had the following conversation:

“I phoned Fair Work Commission and briefed my events of bullying and harassment and the steps I took whilst employed and the reasons of having to resign. Fair Work Commission confirmed that it is classified under an Unfair Dismissal even due to my resignation as I was forced to resign due to my bullying. Though stating that I was outside the 21 days terms, I was advised when I lodge the form, to provide as much detail, the steps I took to find the appropriate avenue for this matter.”

[12] Ms Simeon subsequently, completed and lodged her application in the Commission on the following Monday, 1 April 2019 three days after her conversation with the Commission. While an application was received on that day, the staff could not open attachments to the application document and Ms Simeon was invited to resubmit her application in accordance with the Fair Work Commission Rules, which she did the next day, on 2 April 2019, seven days outside the 21 day time limit. 10

[13] The reasons given by Ms Simeon for the delay in filing are three-fold:

•  Firstly, she was unaware both of her rights to make an application for unfair dismissal remedy and the statutory time frames and did not consider an application until after speaking with a WorkSafe Inspector. In this regard she was initially dealing with her circumstances and what she perceived to be bullying and harassment in the workplace through WorkSafe. The WorkSafe complaint process had commenced with her contact to the agency on 27 February and had been confirmed with Ms Simeon’s submission of the relevant form on 5 March 2019. In the meantime, she had submitted her resignation from BFP on 5 March 2019. It was not until 27 March 2019 that she became aware that the WorkSafe complaint could not provide her monetary compensation. In this respect, Ms Simeon’s evidence included this explanation:

“The reason for my delay was I had contacted WorkSafe whilst I was working for Barkers Fresh” Produce and heard back from them on 28th February 2019 which I was asked to provide further information of the bullying and harassment.

During this time, I had resigned from my employment as I took stress leave from the harassment and I was not getting any further assistance and felt it was best to resign for my health.

I was contacted by a WorkSafe investigator on March 27th and asked to go in and speak to the investigator on March 29th which I provided all my details however I was advised that no monetary compensation can be provided and that I would need to contact the Fair Work Commission.”  11

•  Secondly, and relatedly, Ms Simeon did not become aware of the time-frame for making an unfair dismissal application until after speaking with the Commission staff after having met with the WorkSafe Inspector; and

•  Thirdly, her health had been such that she was “not in a good state of mind” to contemplate making the application before she did. 12

LEGISLATION

[14] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:

“394 Application for unfair dismissal remedy

(1) ….

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  whether the person first became aware of the dismissal after it had taken effect; and

(c)  any action taken by the person to dispute the dismissal; and

(d)  prejudice to the employer (including prejudice caused by the delay); and

(e)  the merits of the application; and

(f)  fairness as between the person and other persons in a similar position.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[15] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”. 13

[16] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 14

[17] In considering whether an extension of time should be granted to Ms
Simeon, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[18] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 15 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.16 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.17 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.18

[19] As discussed above Ms Simeon submits the reason for lodging her application outside the time prescribed is because she was already pursing a bullying and harassment complaint with WorkSafe believing this to be the correct application and that it wasn’t until she became aware that this avenue could not provide her with monetary compensation that she was advised by WorkSafe to contact the Fair Work Commission. After becoming aware of her right to make an application through the unfair dismissal jurisdiction and that such an application was already outside the 21 time limit on or around about 29 March 2019, Ms Simeon took a further three days to make her application for unfair dismissal, initially attempting a lodgement on Monday, 1 April 2019, and finally and successfully on Tuesday 2 April 2019.

[20] It is to be noted that Ms Simeon also started new employment on Wednesday, 3 April 2019. She had obtained that employment through making contact with the employer, whom she knew, sometime earlier, perhaps within one to two weeks of the commencement date. She has since finished that employment. 19 BFP is critical of Ms Simeon’s argument that she was insufficiently well to research and progress an unfair dismissal application while, ostensibly at the same time she was able to research and obtain new employment. It argues therefore that Ms Simeon’s contention that she was insufficiently well to research and progress an unfair dismissal application is implausible.20

[21] BFP submits that the underlying reason given by Ms Simeon for the delay was her ignorance as to her entitlements under the Act and that such a reason does not amount to an exceptional circumstance. 21 BFP put forth that Ms Simeon only raised the submissions surrounding her mental capacity later after her original filing, with Ms Simeon putting forth that she was unaware of what to put forward in her submissions until after she received one hour free legal advice from the Fair Work Commission.22 Further, BFP put forth that after Ms Simeon resigned it took her a further 13 days before she contacted WorkSafe to follow up on her application. At any point during this time Ms Simeon could have followed up with WorkSafe about her complaint or sought legal advice as to her rights and entitlements. Ms Simeon “had already clearly demonstrated both the propensity and capability to seek advice and conduct her own research by making the WorkSafe enquiries while she was an employee of the Respondent.”23 Ms Simeon has provided no reason for the inaction of delay between 5 and 18 March 2019, nor has she provided a reason for the subsequent delay between when she became aware of her rights to make an unfair dismissal application on or around about 29 March 2019 and making such an application three days later, noting that she was advised that such an application was already outside the statutory limitation.

[22] BFP relies on the Full Bench decision in Nulty v Blue Star Group Pty Ltd 24 that ignorance of the statutory time limit is not, of itself, an exceptional circumstance.25

[23] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

‘[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.’ 26 

[24] In considering the circumstances now before the Commission, it is apparent that the factors argued by Ms Simeon as being her explanation for the delay crystallise essentially to her having made a complaint to WorkSafe and expecting that something would be done about the bullying situation about which she complained, leaving it to them to deal with, but also having decided, at the same time, to leave her employment, which she now argues is tantamount to a forced resignation. An overlay to that situation is Ms Simeon’s medical condition. While I accept that she was under the anxiety and distress reported by her, such condition has not been evidenced as having been debilitating or otherwise preventing her from exploring her rights. Demonstrably she was sufficiently capable to explore and secure alternative employment.

[25] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Ms Simeon’s case the time it expired on 26 March 2019, several days prior to meeting with the WorkSafe Inspector. Ms Simeon’s explanation for the delay in not making her application until either 1 or 2 April 2019 is in the three parts referred to above; ignorance of her rights generally and of the time limits, followed with the fact that she did not meet with the inspector or speak with the Commission staff until Friday, 29 March 2019, then finally coupled with the state of her health during the relevant period.

[26] I am unable to accept that Ms Simeon has provided an acceptable explanation for the delay in making her unfair dismissal application. Ms Simeon made an application to WorkSafe prior to her resignation. There is no evidence that Ms Simeon was given incorrect advice to make such an application in lieu of an unfair dismissal application, nor that she took steps to seek advice on her rights after resigning from her employment. As much as it is accepted that ignorance of a persons’ rights under the Fair Work Act in relation to unfair dismissal is not an exceptional circumstance, it must also be regarded that ignorance of what might flow from having made a WorkSafe complaint is also not an exceptional circumstance. Ms Simeon also obtained alternative employment within the same period which she puts forward as being a time that she had some level of medical incapacity with her summarising the situation as being a time when she was “not in a good state of mind”. That Ms Simeon took a further three days to lodge her unfair dismissal application after becoming aware of her rights and that she was aware that she was already out of time to make such an application weigh against her.

[27] Accordingly, neither individually or in combination are these explanations exceptional and accordingly my assessment is that consideration of this criterion does not resolve in favour of Ms Simeon and for the granting of an extension of time for the making of her application.

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

[28] On the basis of the evidence before me, I am satisfied that given Ms Simeon initiated her resignation on her own accord that she was aware of its effect on 5 March 2019. This is therefore not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[29] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 27

[30] I am not aware of any other action taken by Ms Simeon to dispute her dismissal, and the Applicant herself does not rely on any other action of dispute, as such consideration of this criterion is a neutral factor in my overall decision.

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

[31] The delay in the filing of the application is four days. The Respondent submits that it will be inconvenienced if the matter proceeds however, with that such inconvenience does not amount to prejudice if there is an extension of time for the making of Ms Simeon’s application. While the Respondent notes that such an inconvenience does not rise to prejudice to the employer it also submits that the “mere absence of prejudice to the employer is an insufficient bases to grant an extension of time” 28and therefore that this criterion should be given little if any weight. I not am satisfied there is prejudice which is likely to accrue to the Respondent in this matter were an extension of time to be granted by four days. This factor is therefore a factor weighing in Ms Simeon’s favour in my overall consideration.

5. The merits of the application

[32] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[33] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted:

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 29

[34] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 30

[35] The merits of the application likely to be dealt with should the matter proceed to a hearing include the contention on the part of Ms Simeon that she resigned as a result of a constructive dismissal given a lack of investigation and procedural fairness in dealing with her complaints of bullying and harassment.

[36] For its part, BFP contests these arguments on the grounds that Ms Simeon was not dismissed and that in accordance with WorkSafe’s findings BFP did adequality address Ms Simeon’s complaints. BFP also put forward that Ms Simeon resigned from its employment and did so of her own volition, with no compelling circumstances that would lead to the view that it had either been in the “heat of the moment” or otherwise meeting the tests of being a forced resignation. 31 Rather Ms Simeon had been contemplating her resignation months prior wishing to resign prior to BFP terminating her employment.32 The company also notes that after she left its employment, Ms Simeon sought and obtained alternative employment, for a time at least after having left its employment.

[37] BFP’s defence of these matters is not to assert that bullying and harassment did not occur but that the steps taken by them to resolve the grievance were both in keeping with their policies and procedures and were in compliance with its obligations under the Occupational Health and Safety Act 2004 (Vic) which therefore could not have amounted to a constructive dismissal. 33 Ms Simeon’s case appears to face some challenges, even at this early stage of proceedings, with success on her part likely having to depend substantially on establishing major procedural flaws in the employer’s investigation and its handling of her complaints.

[38] From these circumstances it may be extrapolated that there is first a considerable question as to whether Ms Simeon’s application, if permitted to proceed for reason of an extension of time, may yet be ruled out of jurisdiction with there being a finding there was no dismissal on her part. It must also be the possibility that because of Ms Simeon obtaining alternative employment after leaving BFP, coupled with the payment made to her in lieu of her having worked out her notice of termination of employment if there were ultimately to be a finding of unfair dismissal against the Respondent, that compensation may either be low or possibly zero.

[39] While such observations may be drawn from the material so far before the Commission, it remains the case that Ms Simeon is yet to put her full case before the Commission, the consequence of which is an acknowledgement that it is too early to be definitive about the strength of her case. I do not go so far as to say that her case is unmeritorious. This criterion is therefore a neutral factor in my overall consideration

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

[40] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 34 In relation to considerations of fairness with unfair dismissal applicants generally, allowing Ms Simeon an extension of time when other applicants there are not, merely because of her ignorance of her statutory entitlements would be unfair to those other people.35 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.36

[41] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Simeon. That Ms Simeon was unaware both of her entitlements under the unfair dismissal jurisdiction as well as of the time-limit, does not on its own constitute exceptional circumstances.

[42] As a result, Ms Simeon’s application for unfair dismissal remedy must also be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Z. Simeon on her own behalf.

A. Jewell, lawyer McDonald Murholme for the Respondent.

Hearing details:

2019.

Melbourne (by telephone):

24 June.

Printed by authority of the Commonwealth Government Printer

<PR710092>

 1   Transcript, PN 44.

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 4   Exhibit A1, Applicant Outline of Arguments: Extension of Time, 31 May 2019.

 5   Applicant Document List, Attachment A1, 28 February 2019.

 6   Exhibit A1.

 7   Exhibit R2, Witness Statement Jasmine Mustchin, Attachment JM – 2.

 8   Exhibit A1.

 9   Ibid.

 10   Exhibit R1, Respondent Outline of Arguments extension of time, 14 June 2019.

 11   Form F2, Unfair Dismissal Application Form, Item 1.5.

 12   Transcript, PN 21.

 13   Nulty v Blue Star Group, 2011, 203 IR 1 [13].

 14   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 16   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 17   Ibid, [40].

 18   Ibid, [41].

 19   Transcript, PN 57 – 75.

 20   Ibid, PN 78.

 21   Exhibit R1, [23].

 22   Transcript, PN 96.

 23   Ibid, [33].

 24   [2011] FWAFB 975.

 25 Exhibit R1, [24] – [28].

 26   [2011] FWAFB 975.

 27   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].

 28   Exhibit R1, [43], citing Brodie-Hanns v MTV Publishing Ltd [1995] 67 IR 298, 299-300.

 29 (2000) Print T2421 [14].

 30   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 31   Transcript, PN 126 – 128; 140 – 145.

 32   Ibid, PN 126 – 133.

 33   Exhibit R2, Attachment JM-3, pp. 7

 34   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

 35   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 36   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].