Fair Work Act 2009

s.394 - Unfair dismissal

Granny Smith Gold Mining Company Pty Ltd T/A GSM Mining Company Pty Ltd

Application for an unfair dismissal remedy - extension of time

• [1] On 12 February 2024, Mr Andrew Graham (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by Granny Smith Gold Mining Company Pty Ltd T/A GSM Mining Company Pty Ltd (the Respondent) on 4 January 2022 - the day he resigned. The Applicant lodged his unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that it had been filed outside of time and the Applicant had not been dismissed. This decision deals with the out of time objection.

• [2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect and another, whether the Applicant was protected from unfair dismissal.

• [3] Unquestionably, the parties are in dispute over whether the Applicant was dismissed. The Applicant clearly considers he was dismissed, notwithstanding he resigned from his position, and the Respondent disagrees. However, perhaps the first issue requiring attention is whether the application has been validly made.

• [4] The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)-(f) are taken into account.

• [5] In Herc v Hays Specialist Recruitment (Australia) Pty Ltd, the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[1] It appears to have been accepted by a Full Bench of this Commission that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[2] The proper approach is, therefore, to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[3] This of course requires an assumption that an applicant is an employee for this purpose.[4]

• [6] For the reasons that follow, I have found that the Applicant's employment ended on 4 January 2022. It follows that the Applicant's application was made some 748 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[5] to this effect will be issued with this decision.

• [7] The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.

• [8] The Applicant commenced working for the Respondent on 4 December 2014 as a trade qualified fitter/boilermaker.[6] He worked on a fly-in fly-out basis at the Granny Smith Mine Site in Laverton, Western Australia.

• [9] The Applicant purports that whilst he enjoyed work, in the last few months of his employment he was subjected to workplace bullying by his supervisors, which ultimately led to his forced resignation on 4 January 2022.[7]

• [10] On 11 December 2021, a safety incident occurred which subsequently gave rise to an investigative process. During the investigative process the Respondent identified another safety incident that had occurred on 1 December 2021. Therefore, the letter of allegation of 29 December 2021 set out, amongst other matters, the following:

1. On 1 December, it is alleged you cleaned the area with compressed air, contrary to Site practice and without including in your JHA, and were not wearing the correct PPE for use with compressed air. You noticed irritation to your right eye during this task. It is alleged, you did not consult immediately with your shift supervisory, resulting in you being flown off site to have the metal shard in your eye surgically removed.

• 2. On 11 December, you are alleged to have failed to isolate equipment conveyor CV-13 during routine tramp metal recovery, as per the GSM Isolations Procedure (GRA-OHS-PRD047), and subsequently breached one of the Gold Fields Life Saving rules.[8]

• [11] The Respondent required the Applicant to respond in writing to the allegations by 31 December 2021, and to attend a meeting to discuss his response on 4 January 2022.

• [12] According to the Applicant, he attended the meeting and was instructed that he had to provide a further written response notwithstanding having provided an explanation at an earlier meeting.[9] Having felt mentally intimidated, the Applicant said he signed a resignation note.[10]

• [13] The Respondent investigated the Applicant's bullying complaints and by 21 July 2022, had advised the Applicant that they had not substantiated his complaints, offered one month pay and ongoing access to an Employee Assistance Provider (EAP) for six months.[11]

• [14] The Applicant stated that on 15 December 2021, he had contacted the EAP, PeopleSense, for psychological assistance.[12] According to the Applicant, the Respondent permitted him to access EAP until November 2023, at which time it stopped after the Respondent appeared to have declined to pay for further sessions.[13]

• [15] The Applicant stated that he had never mentally recovered since the circumstances arising in December 2021 and PeopleSense had provided tools to deal with the stressors in his life, which could all be traced back to the Respondent's workplace treatment of him in the last six months of his employment.[14]

• [16] The Applicant said that when the EAP sessions were stopped in November 2023, he went and saw Workclaims Australia, albeit he does not specify in his witness statement on what date he consulted with the paid agent. According to the Applicant, Workclaims Australia asked for information about his psychological treatment and health. It appears from the documentation filed that Workclaims Australia requested a report about the Applicant from People Sense, on 30 November 2023.[15] The Applicant stated that he had provided authority to Workclaims Australia to obtain that information.

• [17] The Applicant's representative obtained a Psychological Progress Report from PeopleSense dated 3 January 2024 (the PeopleSense Report). There was a delay in the report being released as the Applicant had to pay the invoice for that to occur.[16]

• [18] The Applicant met with Workclaims Australia on 5 February 2024 to discuss the report and the option for lodging an unfair dismissal application, and subsequently gave instructions to file the application on or about 11 February 2024.[17]

• [19] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act 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) 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.

• [20] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was 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.[18] It is accepted that 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.[19]

• [21] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench 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.[20]

• [22] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[21] 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.[22]

• [23] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[23] 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.[24]

• [24] In respect of the delay, the Applicant's primary reason for the delay is his continuing mental health issues requiring him to seek psychological treatment through the period of December 2021 until November 2023.

• [25] The Applicant's secondary reason for the delay is the 'implied expectation of a response from the Respondent and accountability for his grievances of bullying and harassment',[25] which never came, and therefore when EAP support was terminated, he sought help from Workclaims Australia.

• [26] The majority of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd[26] expressed that stress, shock, and confusion, in and of themselves, are not exceptional. It is said that the loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.[27]

• [27] However, as noted, the Applicant argues that it was his forced resignation against a backdrop of workplace bullying and harassment that gave rise to his mental incapacity to make his application within the statutory period.

• [28] The Applicant, through his representative, had provided the PeopleSense Report.

• [29] As observed by the Respondent, the PeopleSense Report provided by the Applicant confirms that PeopleSense did not have 'any information relating to a medical condition that may have affected Mr Graham's delayed decision to take action via the Fair Work Commission',[28] and describes the Applicant's mental illness on several occasions as a 'typical stress response' to alleged workplace stressors.[29]

• [30] In Underwood v Terra Firma Pty Ltd[30] (Underwood) the Full Bench found 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 because:

[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.

• [31] The Full Bench clarified in Underwood that the decision of Senior Deputy President O'Callaghan in Roberts v Westech IT Solutions Pty Ltd[31] (Roberts) could not be taken as authority for the proposition that in every case where the applicant is suffering from depression, exceptional circumstances will be found for the purposes of s 394(3) of the Act.[32] In Roberts, the Applicant's unfair dismissal application was filed some 22 days out of time and there was medical evidence, which established the primary reason for the delay in filing the application related to Mr Robert's depressive illness.[33]

• [32] The circumstances of each case must be considered in their own unique context.[34]

• [33] The PeopleSense Report states that across his 18 psychologist sessions, in the period of 15 December 2021 to 6 November 2023, the Applicant was 'congruent' and that PeopleSense found 'no evidence of any disordered thought form or content'.[35]

• [34] It is apparent from the evidence filed that the Applicant had sufficient cognitive competence to communicate with the Respondent on multiple occasions throughout the delay period in relation to the bullying and harassment complaint he had made - including involvement in the preparation of a detailed witness statement[36] and impact statement.[37]

• [35] Further, it is noted in the PeopleSense Report that the Applicant had been 'working for his brother-in-law almost daily', and spending time on his boat, fishing, travelling, swimming, and connecting with friends and family.[38] At hearing, the Applicant clarified that for the first six months of the delay period, he had not worked. However, he confirmed that for the last 16 months he had worked, some weeks on a part-time basis and other weeks on a full-time basis.

• [36] It is observed that in the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[39]

• [37] The evidence before me is suggestive that the Applicant decided to and was able, to engage in activities other than attending to the filing of his application, and that he was not so medically incapacitated that he could not work or pursue his activities of daily living.

• [38] If I were to accept the Applicant's assertions regarding his alleged mental incapacity, the PeopleSense Report only states that the Applicant's stress may have impacted his ability to file an application 'within 21 days of resigning'.[40] This does not explain the 748-day delay following the statutory period.

• [39] Further, the Applicant indicates in his submissions that 'the Applicant's primary reason for the delay is his continuing mental health issues requiring him to seek psychological treatment through the period of December 2021 to November 2023.'[41] However, this does not explain the further delay in filing from November 2023 onwards. From the day of his last reported psychologist session on 6 November 2023,[42] the Applicant allowed 98 days to pass.

• [40] It is open to find that the Applicant infers in his evidence that the reason for this further 98-day delay was because he had not yet received the PeopleSense Report. However, the Applicant's representative did not request the Report from PeopleSense until 30 November 2023, and the Applicant's own evidence was that part of the delay in receiving the report was because he had to pay PeopleSense's invoice for the Report.[43] These were matters in the Applicant's control. In any event, the PeopleSense Report was not required to complete the relatively short, straightforward unfair dismissal form. That form could have been completed as soon as he saw his representative for the first time and gave his instructions.

• [41] The PeopleSense Report discloses that the Applicant's stress response during the delay period was also compounded by stressors in his personal life including responsibilities of being a carer for his elderly parents and financial provider for his daughters, as well as contending with his wife's health concerns.[44] However, it is not unusual to suffer financial stress as a result of dismissal.[45] Further, particulars regarding support proffered in the delay period to his elderly parents, daughters and wife are not provided, and as it is, such obligations clearly did not preclude the Applicant from working or pursuing leisure activities.

• [42] I am not persuaded that the Applicant's medical condition contributed to the delay for the abovementioned reasons and consider that the other stressors mentioned in respect of the Applicant's personal responsibilities, are similarly unpersuasive as a plausible reason for the delay. The other reason relied upon by the Applicant, namely his implied expectation of a response from the Respondent and accountability for his grievances of bullying and harassment, did not, in my view, preclude him from making his application in a timely manner. As such I find that the Applicant's request that the Respondent investigate his workplace bullying allegations did not constitute a circumstance excusing the delay in lodging the application.[46]
• [43] As to an assertion, insofar that it is made, that the Applicant had a lack of knowledge and awareness pertaining to available services supporting employment rights as well as accessibility and an understanding as to how he could access the Fair Work Commission service,[47] it is accepted that ignorance of the law, nor a mistake of fact regarding lodgement weigh towards a finding of exceptional circumstances.[48]

• [44] The Applicant gave evidence at hearing that at least a year prior to making his unfair dismissal application, he had sought advice regarding his claim against the Respondent and had been advised to pursue the matter in the 'Human Rights Commission'. On acting upon the advice received, the Applicant said he was informed, to the effect, that the 'Human Rights Commission' was not the correct place to bring an application and it was suggested he seek advice. It follows that the Applicant was not so incapacitated that he was unable to obtain advice in respect of a potential claim - albeit that advice appears to have been misplaced. Further, at that time, that is at least one year ago, it had been suggested to the Applicant to obtain further advice. That the Applicant opted not to follow the matter up at that point, having been informed that the 'Human Rights Commission' was not the correct place to pursue his application, was left relatively unexplained.

• [45] In my view the reasons for the delay when considered together are insufficient to explain part of, or the entirety of, the delay period. These findings in culmination weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21 day period.

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

• [46] On 4 January 2022, the Applicant became aware that his employment would come to an end as this was the date on which the Applicant informed the Respondent he was resigning. It was therefore not the case that the Applicant was taken by surprise by the end of his employment.

• [47] The Applicant submitted that whilst he knew what he had done, he had little insight into what the legal consequences were in his situation, albeit he knew that he had been forced from his job. The Applicant pressed that he was in no mental state to do anything about it.

• [48] Given the Applicant resigned, he had time in which to consider his options with respect to the recourse he could pursue. Whilst appreciative that the Applicant was seeking psychological support at the time, the evidence does not support a finding that he had been unaware of his dismissal. However, on balance, I consider this to be a neutral factor in respect of a finding of exceptional circumstances.

3.3 Action taken by the person to dispute the dismissal

• [49] The Applicant speaks of the steps he took to engage with the Respondent to alert it that his grievance about workplace bullying and harassment was never dealt with.

• [50] I accept that the Applicant raised concerns with the Respondent relating to alleged bullying and harassment. However, I am of the view that the Applicant did not take action to dispute what he alleged to be constructive dismissal and did not mention that he considered his resignation to be forced until an email some 405 days later.

• [51] The Applicant raised concerns regarding bullying and harassment whilst still employed by the Respondent on 14 December 2021.[49] The Applicant resigned on 4 January 2022. While the Applicant remained in contact with the Respondent with respect to the investigation into his workplace bullying and harassment grievances, the fact that the Applicant considered his resignation to be a 'constructive dismissal' was not raised with the Respondent until 13 February 2023, in an email and impact statement sent to the Respondent where the Applicant stated '[w]hen I left Goldfields (under extreme duress)...' and that the Applicant's hope was that when Mr Ken Fairless and 'Jordan' leave:

...and you get a pat on the back for a job well done that you both think of me and the disgusting and completely unprofessional way that you got rid of me. For me, you took away the satisfaction and joy I should have had in my retirement.[50]

• [52] This appears to have been the first occasion an issue in relation to the end of the Applicant's employment was raised, some 405 days following the Applicant's resignation. However, the issue was raised within the context of the Applicant sending to the Respondent an impact statement regarding the purported treatment he had been subjected to whilst employed with the Respondent. The covering email to the impact statement stated:

I have sent you a [sic] email statement [sic] Please read it and ask Ken for a response and let me know if you think Goldfields HR team did the right thing by me I am struggling to move on as I have never received a response to all of my allegations (none) I am hoping that you are the person I was told you were and help me see a [sic] end to this ordeal [sic] Goldfields has let your Supervisors gets [sic] away with treating me the way they did...[51]

• [53] In contrast, the PeopleSense Report states that the Applicant 'advised he had no intention to return to Gold Fields and thus felt satisfied with his decision to resign'.[52] At hearing, the Applicant could not recall having made that statement to PeopleSense.

• [54] Having considered the totality of the evidence and being appreciative of the workplace bullying and harassment grievance that the Applicant had pressed in addition to his impact statement to the Respondent, I am not persuaded that the Applicant's references in his impact statement evince him disputing his dismissal. On balance, the evidence does not favour a finding that the Applicant took action to dispute his dismissal but I am satisfied it is a neutral factor.

• [55] The Respondent submitted that the significant delay has caused it to suffer prejudice and that the relevant prejudice is one that would not have been suffered had the application been made within 21 days of the dismissal taking effect.[53] The Applicant contends that the Respondent had not relied upon any prejudice in its Form F3 and that it could not, given it had a clear record of the events as articulated in that response.

• [56] In GHD Pty Ltd v Black[54] (GHD), it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[55] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[56]

• [57] I am satisfied that the factor of 'prejudice' in this matter, weighs toward a finding of exceptional circumstances for the following reasons.

• [58] I accept the submission of the Respondent that many of the relevant employees of the Respondent who were engaged in the relevant positions at the time of the alleged conduct are now no longer employed, meaning the Respondent no longer has access to the people it would otherwise call as a witness in these proceedings. Additionally, the extensive time that has passed since the events mean that the recollection of those still employed by the Respondent may be impaired in respect of the purported events that unfolded.

• [59] Whilst the Applicant presses that the Form F3 essentially demonstrates that the Respondent was not prejudicially impacted by the delay in filing the application given its clear record of events, the Form F3 simply replicates a chronology of events - arguably one which could have been drawn from business records. As such, it is absent the nuances of witness evidence which ultimately a case is dependent upon. In my view, the Applicant's submission is misconceived and the Form F3, or rather its contents, is not suggestive that the Respondent would not suffer prejudice from the delay in making the application.

• [60] In Telstra Network Technology Group v Kornicki,[57] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

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.[58]

• [61] 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.[59] 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.

• [62] The Respondent submitted correctly, in my view, that in circumstances of resignation, the employee bears the onus of showing either that the employer intended to force the employee to resign,[60] or that the employer's conduct was of such a nature that resignation was the probable result.[61]

• [63] The Applicant submitted that he had a very strong case. On 4 January 2022, the Respondent was cognisant that the Applicant was attending EAP sessions, and the Applicant had found himself in a very stressful situation - one that he simply wanted to leave. The Respondent had provided the Applicant with a blank piece of paper, and ultimately, it was the Applicant's evidence that a staff member of the Respondent wrote the Applicant's resignation notice, after the Applicant had signed the blank piece of paper. Accordingly, the Applicant presses that he had a strong case in respect of having been dismissed (forced resignation) and as to the merits.

• [64] The Respondent submitted that the Applicant was not forced to resign by the Respondent; rather, the Applicant voluntarily resigned on 4 January 2022. However, the Respondent acknowledged, appropriately, that the Commission is not in a position to determine contested issues of fact in this interlocutory proceeding.[62] However, the Respondent pressed that its position was that the Applicant would face significant evidentiary difficulties in establishing either that the Respondent intended, or took steps, to force the Applicant to resign, or that the Respondent's conduct led to the Applicant's resignation as a probable result. This, submitted the Respondent, is particularly so considering the Applicant's own admission during his sessions with PeopleSense, where he reportedly advised he had no intention to return to Gold Fields and thus felt satisfied with his decision to resign.

• [65] It is not expected at this stage that the merits of the application or a jurisdictional objection to the same, would be fully explored. However, it is not the case that I consider the application has no merit. As such, I find the merits of the application in this case, to be a neutral factor.

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

• [66] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[63]

• [67] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [68] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [69] The Applicant has not provided a satisfactory explanation for the whole of the delay in making his application. The remaining matters I need to consider are otherwise neutral in this respect or do not weigh toward a finding of exceptional circumstances. Having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.

• [70] The application was made outside the time limit imposed by the Act, and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.

O Klimczak for Granny Smith Gold Mining Company Pty Ltd T/A GSM Mining Company Pty Ltd

[1] [2022] FWCFB 234, [15].

[5] PR772681.

[6] Witness Statement of Andrew Graham, [4] (Graham Statement).

[18] [2011] FWAFB 975; (2011) 203 IR 1, 5 [13] (Nulty).

[20] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38] (emphasis in original).

[23] Long v Keolis Downer [2018] FWCFB 4109; (2018) 279 IR 361, 371 [40].

[24] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287; (2015) 246 IR 362, 366 [12] (Shaw).

[25] Applicant's Outline of Submissions, [16] (Applicant's Submissions).

[28] See Applicant's documents, document titled "PeopleSense Psychological Progress Report" (PeopleSense Report); DHB (n 8) 17.

[30] [2015] FWCFB 3435 (Underwood).

[31] [2014] FWC 4226.

[39] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.

[41] Applicant's Submissions (n 25) [12].

[43] Graham Statement (n 6) [33]; DHB (n 8) 34.

[45] Massey v Centrecare [2022] FWC 250.

[46] Gao v Department of Human Services [2011] FWAFB 5605.

[48] See eg. Murray v Ambulance Victoria [2022] FWC 215 at [29], McIntosh v Barwon Health [2022] FWC 227, Nulty (n 18) [14].

[53] Clarke v Service to Youth Council Incorporated [2013] FCA 1018, [31].

[54] [2023] FWCFB 38, [51] (GHD).

[55] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd

(1995) 67 IR 298 at 299-300.

[57] (1997) 140 IR 1.

[59] 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].

[60] Australian Hearing v Peary (2009) 185 IR 359, [30].

[61] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, [18] citing O'Meara v Stanley Works Pty Ltd AIRC Print PR973462 (11 August 2006).

[63] [2015] FWC 8885, [29].

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