s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 23 June 2025, Mr Brendon Aaron De Villiers made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] Mr De Villiers was dismissed from his employment with Offenders Exposed Pty Ltd (the Respondent) on 22 May 2025. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 12 June 2025.

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

• [4] The application has been made 11 days out of time. Mr De Villiers seeks an extension of time within which to make his application.

• [5] Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 17 September 2025. Mr De Villiers represented himself. Ms Anna Stubbersfield, Associate, Sparke Helmore Lawyers was granted leave to appear for the Respondent pursuant to s.596(2)(b) of the Act. Ms Tania Roy, Founder of the Respondent also attended the hearing.

• [6] Mr De Villiers commenced working for Ms Roy in April 2021 when Ms Roy was a sole trader. The Respondent entity, Offenders Exposed Pty Ltd was incorporated in December 2022 and Mr De Villiers worked for the Respondent.

• [7] The Respondent is a business that publishes the names of alleged domestic violence, child abuse and sex offenders on a website. People pay a subscription to access the service.

• [8] Mr De Villiers stated that in September 2024, he declined to perform a task outside of his duties and Ms Roy threatened to dismiss him.

• [9] Mr De Villiers asserted that he is contractually entitled to 25% of all revenue earned by the Respondent and threats were made by Ms Roy in respect of this issue from November 2024.

• [10] On 15 April 2025, Mr De Villiers made a s.372 general protections (not involving dismissal) to the Commission.

• [11] On 12 May 2025, he was issued with a suspension letter with four allegations. On 22 May 2025 he was dismissed for serious misconduct. The termination letter stated that Mr De Villiers failed to complete duties with due care and diligence by not conducting updates on the company website, exposing the business to a security data breach. Further, it stated that Mr De Villiers blocked access to the Respondent's website, preventing Ms Roy and other employees from responding to enquiries.

• [12] At 2:33pm on 5 June 2025, Mr De Villiers made an application for unfair dismissal pursuant to s.394 of the Act. Less than one minute later, he made a s.365 general protections application involving dismissal. As is clear, the unfair dismissal claim was made first, followed by the general protections application involving dismissal.

• [13] His evidence is that he reviewed an online article on a website, www.sprintlaw.com.au which touts itself as an online legal advice site, and states the following:

"Can an employee bring both an unfair dismissal and a general protections claim?

Generally, employees must choose which claim to pursue in relation to a dismissal. They can file both initially, but usually must opt for one before the case progresses. Some exceptions exist - if you're unsure, get advice from an employment lawyer."

• [14] On 10 June 2025, Mr De Villiers made a telephone call to the Commission to enquire which of his two claims was 'live' and how he could pay for the second application fee. His evidence is the person who answered his call informed him that his general protections application involving dismissal had not yet been processed.

• [15] On 12 June 2025, he was sent an email from the Commission acknowledging his unfair dismissal application. The email stated that he had not yet provided the legal name of the Respondent on the form.

• [16] Mr De Villiers responded at 3:24pm that day as follows:

I did provide the name of the employer on the sheet - Offenders Exposed Pty Ltd.

I also listed an accessory - Mrs Tania Marie Roy (Company Director)

Also, which lodgement is this? From everything I Googled it told me that my best bet is/was to lodge both a GP with dismissal claim and an Unfair Dismissal claim, together - So I did.

Which one is this? It doesn't have a payment link but the other email I got, does, Have both been processed or is this 2 emails for the 1 claim?

• [17] Mr De Villiers sent a further email to the Commission on 13 June 2025 in respect of adding a timeline statement. He noted in the email that he had two claims before the Commission.

• [18] On 16 June 2025, he again contacted the Commission by telephone. His evidence is that he was informed that somebody would contact him.

• [19] On 20 June 2025, he telephoned the Commission again. He was informed that his general protections application involving dismissal was not a valid application because his unfair dismissal claim had been made first in time. This is the first time he learned that he did not have a valid general protections application involving dismissal before the Commission.

• [20] I have reviewed the file note made by the Commission's Client Services Representative (CSR) on this day. The advice to Mr De Villiers is correct. The note states, inter alia:

• A [for Applicant] made a call and advised he made the unfair dismissal first, then the general protections application involving dismissal;
• He had received advice that the Commission would respond to the situation by allowing him additional time to choose which application he wished to pursue;
• Advised him that that the actual process is the first application would be valid and the second application invalid;
• Explained potential options - proceed with unfair dismissal and discontinue GP, or discontinue both and make a fresh GP application, but it's out of time;
• Agreed to hold until Monday, 23 June;
• A aggrieved - indicated he had contacted Commission on 10 and 16 June and not been advised of issue;
• A will obtain legal advice.

• [21] On 23 June 2025, Mr De Villiers again contacted the Commission. His phone call was 35 minutes in duration. While on the phone he discontinued the unfair dismissal application and the general protections application involving dismissal. He emailed the application the subject of this decision while speaking with the CSR.

• [22] The Form F8 application form contains the following question:

"1.6 Have you made another claim to the Commission or to any other body regarding your dismissal (eg an unfair dismissal application)?

The Commission cannot consider your general protections application involving dismissal if you have made another claim in relation to your dismissal, such as an unfair dismissal application or a complaint to the Australian Human Rights Commission. If you answer 'Yes' to this question, you will need to decide which claim is the most appropriate one. If you're unsure which is the best option for you, read the where to get help section in the cover sheet of this form."

• [23] Mr De Villiers answered yes to this question on 23 June 2025. He further stated within the application form:

"At no point before this final enquiry was I notified that my GP-D application was voided or required re-lodgment. I re-lodged within 1 business day upon learning of the void (this application). The delay was entirely due to administrative processing and lack of timely notification by the Commission. I respectfully ask that the Commission exercise its discretion under s 366(1) of the Fair Work Act 2009 to accept this application out of time.

PLEASE ALSO NOTE: Though this document does ask if a second claim has been made and states "you will need to decide which claim is the most appropriate one" - It does not state that the decision will be made for the applicant, dependent upon which application is lodged first."

• [24] He makes a point that the text within the application form states "you" will need to decide which claim is the most appropriate one.

• [25] Mr De Villiers stated that despite having withdrawn his unfair dismissal application on 23 June 2025, he was copied into an email on 1 July 2025 from the chambers of a Member of the Commission, requiring the Respondent to file a Form F3 to his unfair dismissal application. He telephoned the Commission on 2 July 2025 to remind the Commission that he had discontinued his unfair dismissal application. Correspondence was sent from the Member's chambers advising that the unfair dismissal application had been discontinued.

• [26] In cross-examination, Mr De Villiers agreed that the Commission's information in the General Protections benchbook states the following:

See Fair Work Act ss.725‒733

When a person is dismissed, it may be necessary to choose one of several available options for challenging the dismissal (apart from a general protections application there could for example, be a right to make an unfair dismissal application or a claim under anti-discrimination laws).

The Fair Work Act 2009 contains provisions which allow only one application to be made (a single action) in relation to a dismissal. Multiple actions for the same conduct are not permitted.

A general protections dismissal dispute application must not be made if another application or complaint dealing with the dismissal (such as an unfair dismissal application) has also been made."

• [27] He stated that he did not read the benchbook before making the two applications on 5 June 2025. He was focussed on and had been advised by a lawyer (at no charge), to make the two applications and then he could weigh up which one he wanted to pursue.

• [28] In submissions he noted that nowhere does it say that the Commission's registry will void an application without notice. In completing both the unfair dismissal form and the general protections form, he considers that it represents that the person has a choice, depending on the best option for them.

• [29] As to the reason for the delay in making this application, he submitted that it arose due to the Commission's failure to communicate to him that his first general protections application involving dismissal was void because he had, 30 seconds earlier, made the unfair dismissal application. He was not informed of this until 20 June 2025. He stated that he took action on 23 June 2025, the first business day after learning of the situation.

• [30] During the hearing I asked Mr De Villiers why he could not have taken the steps he took on 23 June 2025 immediately after learning of the situation on 20 June 2025. He stated that he had to satisfy himself of the need to discontinue the two earlier applications and make a fresh application, and he took the time over the weekend to research that potential course of action. He could not speak with anybody in the Commission over the weekend. He considers that he made all reasonable efforts to deal with the situation by 23 June 2025.

• [31] In respect of his action to dispute the dismissal, he noted that he lodged the two applications on day 14 and followed this up with many phone calls to the Commission. He them promptly made this application upon learning of the difficulties of the earlier applications.

• [32] As to prejudice to the Respondent, he noted that the earlier applications were already before the Respondent. Witness recollections have not faded.

• [33] He referred to a number of issues of merit which are not necessary to repeat in this decision.

• [34] As to fairness between like cases, Mr De Villiers submitted that the application forms appear to give the person completing it a choice of which application they would like to pursue.

• [35] He submitted that the Commission should exercise its discretion to grant to him an extension of time.

• [36] The Respondent noted that the relevant parts of the Commission's benchbook, reproduced at [26] make it clear that a general protections dismissal application must not be made if another application has been made, such as an unfair dismissal application.

• [37] The Respondent submitted that nothing in the wording above supports Mr De Villiers' position that he reasonably believed he was permitted to make both applications on 5 June 2025 and then decide later as to which application he would proceed with. Mr De Villiers was not entitled to make the general protections application after he had made the unfair dismissal application. The Respondent submitted that it should follow that Mr De Villiers should have expected that one of his applications would not be able to proceed and would therefore be terminated by the Commission.

• [38] The Commission did not void the unfair dismissal application; Mr De Villiers discontinued it on 23 June 2025. It was submitted that he could have continued with that application and he unreasonably made the decision to discontinue that application in favour of filing this application, knowing there would be a risk in respect of the out of time application.

• [39] In respect of prejudice to the Respondent, the application being 11 days out of time, the Respondent submitted that had Mr De Villiers pursued the unfair dismissal application, rather than making an out of time general protections application, the matter would be closer to a resolution. The proceedings are now protracted.

• [40] It was submitted that the protraction has caused prejudice to the Respondent, particularly to Ms Roy, as she has suffered a number of unfortunate events. I have had regard to all of the matters raised in Ms Roy's witness statement, but do not consider it appropriate to reproduce them here. I am mindful of the large following of subscribers to the Respondent's services and it is not necessary for them to learn of Ms Roy's personal circumstances.

• [41] In respect of the merits of the application, the Respondent denies that it contravened the general protections provisions of the Act. It supports its reasons for the dismissal.

• [42] As to matters of fairness, the Respondent submitted that the circumstances are not exceptional and do not justify an extension of time.

• [43] Reference was made to the decision in Monks v Credwell Personnel Pty Ltd,[1] a decision of Deputy President Boyce. In that decision, the Deputy President decided against granting an extension of time. Ms Monks had made an application for unfair dismissal within the 21-day time limit. After a conciliation conference before a Commission staff member, she sought to convert her unfair dismissal claim into a general protections application. She was informed she could not do so, and accordingly withdrew her unfair dismissal claim and then brought a general protections application out of time.

• [44] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd,[2] where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression 'exceptional circumstances' in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression 'exceptional circumstances' in s.394(3) and held:

'[5] The word 'exceptional' is relevantly defined in The Macquarie Dictionary as "formatting an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression 'exceptional circumstances' was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

'23. I am of opinion that the expression "exceptional circumstances" requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

"Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances."

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.'

[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." [footnotes omitted].

• [45] For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

• [46] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]

• [47] The test of 'exceptional circumstances' establishes a 'high hurdle' for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[4] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[5]

• [48] The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[7]

• [49] A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[8] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[9]

• [50] I accept that Mr De Villiers perused the content of each of the Form F2 (unfair dismissal application) and Form F8 (general protections application involving dismissal) when he filed his two applications on 5 June 2025. He did so well within the statutory 21-day time limit in which to bring an application before the Commission.

• [51] I do think the notes under Question 1.6 within the Form F8, and Question 1.7 within the Form F2 give the impression that an applicant has some power to make a decision as to which application they can continue. Whilst the notes say that the Commission cannot consider an application if the applicant has made another claim in relation to their dismissal, in my view, it would not be clear to the person completing the form that a second application will be rendered void because the first application has been made.

• [52] Whilst the advice might be clearer in the Commission's benchbook, there is no obligation on a prospective application to research the Commission's benchbook before making an application to the Commission.

• [53] The information provided by the CSR to Mr De Villiers appears to me to be correct; the first general protections application involving dismissal is not valid and cannot ever have been made because the unfair dismissal application was made first-in-time. However, an applicant completing the form could, in my view, be under the impression that they could file multiple applications and later choose a path that best suits them.

• [54] While it would clearly be against public policy to permit an applicant to make multiple applications and then choose a best path, and the Act does not permit it, having regard to what is in the application forms, I do not consider an average lay person would understand that a second application is rendered void. Some clearer wording to the forms might be helpful, making it clear that the first-in-time application voids any subsequent applications relating to dismissal.

• [55] I note that Mr De Villiers made numerous telephone calls to the Commission after he filed the first two applications. Regrettably, he received very little written correspondence in return. In addition to the acknowledgment of his unfair dismissal application in the correspondence at [15], on 16 June 2025, the Commission sent correspondence acknowledging the first general protections application had been received and Mr De Villiers had "started a case".

• [56] In Mulready v Joblink Plus Limited,[10] Mr Mulready lodged an application in respect of an unlawful termination dispute. Within an hour, he then lodged a general protections application involving dismissal. The Commission contacted him five days later to inform him of the issue and he discontinued the unlawful termination dispute over the phone. That day he then lodged a fresh general protections application involving dismissal. That application was made one day late. Commissioner Matheson granted an extension and found in respect of the reason for the delay the following:

"[20] I accept that mistakes in the filing of applications are a regular occurrence. However, in this matter the Applicant knew he had made a mistake when he lodged the Form F9 headed "Application for the FWC to deal with an unlawful termination dispute" and upon realising his mistake, took immediate steps to deal with this by filing the correct application form type 44 minutes afterward and within 21 days of his dismissal. The First Form F8 sets out the same allegations concerning the dismissal as the Second Form F8. However, the Applicant was caught out by a legal technicality in that he needed to discontinue the Form F9 application filed 44 minutes earlier before he could make his general protections application due to the operation of s.725 of the Act. The circumstances of this matter are somewhat unusual and are not analogous to those in Singh v Dai Staff and Young v Braziliant. I find the reason for the delay weighs in favour of an extension of time."

• [57] Whilst it was possible for Mr De Villiers to have, upon learning of the difficulties with his application on 20 June 2025, made attempts to withdraw his earlier unfair dismissal application and then make a fresh general protections application involving dismissal on 20 June 2025, I have had regard to his evidence that he needed to satisfy himself of the correctness of the advice provided to him on 20 June 2025.

• [58] Mr De Villiers wanted to discontinue the earlier applications over the telephone which he did on 23 June 2025. He then made this application over the telephone after he had discontinued the earlier applications. It is not possible to speak to a CSR over the telephone over the weekend. Given the technical nature of the matters before him, I accept that Mr De Villiers acted prudently to bring this application on 23 June 2025.

• [59] I accept that had the Commission informed Mr De Villiers of the technical difficulties with his applications prior to 20 June 2025, he would have acted promptly to address those difficulties. He made his two applications on 5 June 2025, and he expressed his disappointment to the Commission on 20 June 2025 that it had taken a considerable time to inform him of the fact that the first general protections application was not valid, despite his several phone calls to the Commission. It was Mr De Villiers' telephone call to the Commission - an inbound call - which resulted in him learning of the difficulties.

• [60] The reasons for the delay provided are, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal - s.366(2)(b)

• [61] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[11]

• [62] Mr De Villiers made a valid unfair dismissal application on 5 June 2025, well within the statutory time limit in which to bring his claim. He also attempted to file the first general protections application involving dismissal. The second general protections application involving dismissal deals with the same matters as the first.

• [63] Mr De Villiers made every effort to contact the Commission on several occasions to enquire as to his two applications. He was seeking to make an election as to which one he would pursue. He was not provided with a definitive position until 20 June 2025.

• [64] I am satisfied that Mr De Villiers took concerted action to dispute the dismissal. This is supportive of an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [65] The Respondent would have received communication from the Commission following the applications made on 5 June 2025 that Mr De Villiers was contesting his dismissal, whether by way of a claim for unfair dismissal or a general protections application. Whilst they are distinct jurisdictional avenues, the Respondent was aware of the commencement of dismissal proceedings.

• [66] I do not consider there would be any prejudice to the Respondent caused by the delay. This is a neutral factor in the overall assessment of whether there are exceptional circumstances to warrant an extension of time being granted.

• [67] It is well established that "it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[12]

• [68] I have had regard to the matters put by Mr De Villiers and the Respondent's assertion that Mr De Villiers blocked the Respondent access to its website. On reviewing the website, it appears to be out of operation.

• [69] It is not possible to make any firm or detailed assessment of the merits. I am satisfied that the merits of the application are a neutral consideration in relation to whether I should extend time for the application to be made.

Fairness as between the person and other persons in a like position - s.366(2)(e)

• [70] The criterion of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[13] where it was said:

"...cases 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."

• [71] I have had regard to the decision in Mulready and find the circumstances to be rather similar, although in Mulready, Mr Mulready made a valid application on the same day that he learned of the invalid application. I note that Mr Mulready's application was made one day late, as opposed to Mr De Villiers' application being 11 days out of time, but I have also had regard to the fact that the Commission actively telephoned Mr Mulready to inform him of the difficulty.

• [72] I adopt the Commissioner's reasoning in Mulready and consider that results in this criterion being supportive of an extension of time being granted.

• [73] Taking into consideration the matters I am required to take into account under s.366(2) of the Act, I am satisfied that there are exceptional circumstances in this case. I consider that the circumstances of this case are out of the ordinary course, unusual and uncommon. In the manner adopted by Commissioner Matheson in Mulready, I will exercise my discretion to allow an extension of time for the making of the application until 23 June 2025.

Having allowed the extension of time, I will conduct a conference to see if I can assist the parties in resolving the matter by way of conciliation.

A Stubbersfield of Sparke Helmore Lawyers, for the Respondent.

[1] [2022] FWC 2810.

[2] [2011] FWAFB 975.

[3] Smith v Canning Division of General Practice [2009] AIRC 959.

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

[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]- [45].

[8] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[9] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[10] [2025] FWC 2203 ('Mulready').

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

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

[13] [2015] FWC 8885 at [29].

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