Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Extension of time - Whether exceptional circumstances present - Representative Error - Whether Applicant blameless in delay - Exceptional circumstances present - Extension of time granted.

[1] This Decision concerns an application by Mr Gary Mellios under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Qantas Airways Limited (Qantas). Mr Mellios' employment was terminated on 26 February 2019. The application was made on 20 March 2019.

[2] By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The application was made one day outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

[3] Directions were issued requiring Mr Mellios to file material he relies on to establish that there are exceptional circumstances justifying the grant of a further period in which to make his unfair dismissal application, by 4.00pm on Tuesday 21 May 2019. Qantas was directed to file and serve any material in relation to the matter by 4.00pm on Tuesday 28 May 2019. The matter was listed for Jurisdiction Hearing on Tuesday 18 June 2019. Qantas opposes the grant of a further period and argued that there is some inconsistency in Full Bench authority dealing with the matter of representative error.

[4] Both parties sought to be legally represented and permission was granted on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity and that no issues of fairness arose.

[5] Mr Mellios was represented by Ms Cate Hartigan of Counsel who was instructed by Mr Luke Murray, Assistant Secretary of the Australian Licenced Aircraft Engineers' Association (the ALAEA). Qantas was represented by Mr Andrew Pollock of Counsel who was instructed by Ms Jessica Tuffin of Ashurst.

[6] The ALAEA on behalf of Mr Mellios responded to the Directions by filing an outline of submissions in relation to a further period being granted to Mr Mellios, and witness statements made by Mr Mellios and Mr Stephen Purvinas, Federal Secretary of the ALAEA. Mr Mellios relies on representative error on the part of the ALAEA as the reason for the delay in making his application. The evidence and submissions can be summarised as follows.

[7] Mr Mellios was notified of allegations against him which can be broadly described as using his Company issued iPad to view inappropriate material both in and outside the workplace, and was suspended from duty on full pay on 9 October 2018 while Qantas completed an investigation. Mr Mellios sought advice and assistance from the ALAEA throughout the investigation and disciplinary process, including receiving assistance to respond to the allegations.

[8] Mr Mellios was given a letter notifying him that his employment was terminated at a meeting on 26 February 2019, following the investigation.

[9] The termination letter stated that the termination was effective immediately and Mr Mellios received payment in lieu of notice. The termination letter also informed Mr Mellios that he may seek to appeal the decision to terminate his employment in line with the Appeals section of the Qantas Group Standards of Conduct Policy (Conduct Policy). The letter outlined how Mr Mellios may lodge the appeal, and noted that an appeal must be sent within seven days of Mr Mellios receiving the letter. Mr Mellios also states the terms and conditions of his employment were governed by and subject to the terms of the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (the Agreement) as well as various other company policies.

[10] Mr Purvinas' evidence is that he was unsure if Mr Mellios still had a right as an employee to lodge an appeal under a policy that only applies to employees and in his view, Mr Mellios also had a right under the Agreement to appeal the decision to terminate his employment. Further Mr Purvinas states that despite this confusion, he instructed ALAEA staff to lodge an internal appeal against the decision to terminate Mr Mellios' employment as early as possible.

[11] Mr Mellios lodged an internal appeal with the assistance of the ALAEA on 27 February 2019. The Conduct Policy sets out the process for appeals against decisions to terminate employment at clause 17.7 and at clause 17.7(e) states:

"(e) Appeals against termination of employment will be determined by the Company, wherever possible, within 10 calendar days of receipt of a written appeal."

[12] Mr Purvinas states that he had calculated "internally" that an application on behalf of Mr Mellios for an unfair dismissal remedy should be filed by Monday 18 March 2019 and he wanted the application ready to lodge on the Friday before that date. On 7 March 2019 Qantas advised the ALAEA that the outcome of his appeal had been delayed and would not be determined within 10 calendar days but would be available on 13 March 2019. On 13 March 2019 Mr Mellios was informed that his appeal was unsuccessful, and Mr Mellios informed Mr Purvinas that he wished to file an unfair dismissal application.

[13] Mr Purvinas states that on 14 March 2019 he instructed ALAEA's "industrial and legal staff" to prepare Mr Mellios' unfair dismissal application.[1] Mr Purvinas' evidence is that he was conscious that an application made more than 21 days after 26 February 2019 may fall outside the 21 day period for the unfair dismissal application to be made, and that had Qantas given an outcome from the internal appeal within the 10 days, the ALAEA would have had 10 days to prepare the and file an unfair dismissal application in the event the appeal was unsuccessful.[2]

[14] Mr Purvinas states that Qantas delivering the outcome of the appeal on 13 March 2019 was four days after the 10 calendar timeframe provided for in the Conduct Policy, and this left the ALAEA with only 3 business days to seek legal advice on the merits of the case, to prepare the application and for final approval from Counsel.[3]

[15] The application was filed by a representative of the ALAEA on Mr Mellios' behalf on 20 March 2019, one day outside the timeframe provided for in s. 394(2) of the Act. Mr Purvinas states that he was aware the outcome of the appeal was delivered late, but still thought he had the remainder of the week commencing 17 March 2019 to file the application, based on his belief at the time that he wanted the application ready by the Friday knowing it was not actually due until the following Tuesday. Further, Mr Purvinas states he had considered that he had built in a few days buffer as Qantas had communicated the appeal outcome late, but that the application would still be well within time if submitted on a Wednesday, which was actually one day late.[4] In short, Mr Purvinas miscalculated the time period in which the application was required to be filed.

[16] It is Mr Mellios' evidence that throughout the disciplinary investigation process and the termination of his employment, he has been totally reliant upon the ALAEA for assistance, advice and guidance. Mr Mellios' also states he was told on numerous occasions that everything would be taken care of, especially in relation to the lodgement of his unfair dismissal application.

[17] The ALAEA submits on Mr Mellios' behalf that Mr Mellios' is wholly blameless in the delay, having provided clear instructions to contest the matter, and to refuse an extension of time would be to visit the error of his representatives on Mr Mellios. Further, the ALAEA submits the representative error arose out of confusion caused by Qantas' delay in providing the outcome of the internal appeal.

[18] Qantas submits that the representative error relied on by Mr Mellios to seek an extension of time to make his application did not constitute an exceptional circumstance within the established legal principles. Qantas also submits that the relevance of an applicant's conduct in assessing whether representative error provides an acceptable reason for delay is a matter for debate. According to Qantas, one line of authority stemming from Clark v Ringwood Hospital[5] and Davidson v Aboriginal and Islander Childcare Agency[6] treats the applicant's conduct as the central consideration. That approach draws a distinction between a delay properly apportioned to the applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

[19] The other approach - adopted most recently by a Full Bench in Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers[7] - requires only that an applicant establish that they "gave appropriate instructions to a legal practitioner in a timely fashion". It does not require an applicant to take any further steps to inquire as to whether their application has been progressed within time.

[20] Notwithstanding that Rogers was recently decided, Qantas submits that the Commission ought distinguish it here and follow the approach set out in Clark and Davidson. Two aspects of the reasoning in Rogers are notable in this regard. First, the Rogers Full Bench did not expressly disapprove the approach of the Full Benches in each of Clark and Davidson. Given the frequency with which those Full Bench authorities are relied upon in extension of time applications, one would have expected a clear and unambiguous disapproval of those decisions had that in fact been intended.

[21] Second, insofar as Rogers amounts to a departure from Clark and Davidson, the factual scenario dealt with in Rogers concerned a particular species of representative error: namely error on the part of a solicitor (rather than an industrial officer, as was the case here). This is not merely a distinction without difference: legal practitioners hold legal and ethical obligations far beyond those which apply to lay representatives. The consequences for breaches of those obligations can greatly impact that practitioner's ongoing ability to practice. It was thus open to the Rogers Full Bench to find, as they did at [16], that "there is nothing usual or normal about negligence on the part of a solicitor."

[22] Qantas submits that this is not to say that negligence on the part of a lay representative is "usual or normal". However, in the absence of express disapproval by the Rogers Full Bench of established (and regularly followed) Full Bench authority, the proper course is to carefully confine Rogers to the factual scenario it contemplated. That scenario is relevantly distinguishable from this case.

[23] Qantas submits that on either approach it is clear that the existence of representative error is only one of a number of factors to be considered in deciding whether or not a late application should be accepted. The significance of that error must be assessed - both in its own right, and against the remaining factors prescribed in s 394(3).

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[24] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:

"(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:

(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

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

[25] The approach to deciding whether there are "exceptional circumstances" in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.[8]

[26] 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.[9]

[27] The assessment of whether "exceptional circumstances" exist requires a consideration of all of the relevant circumstances. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):

"[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay."[10]

[28] The Applicant must provide a credible reason for the delay in making an application and the reason is considered along with the other matters set out in s. 393.[11] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.[12] However, the circumstances from the time of the dismissal must also be considered and ultimately whether those circumstances are exceptional circumstances.[13]

[29] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[14] The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.[15] I turn now to consider each of the matters in s.394(3) of the Act.

Reasons for the delay - s.394(3)(a)

[30] The reason for the delay advanced on behalf of Mr Mellios is representative error. Generally parties who place matters in the hands of a representative such as a lawyer, paid agent or union, and take all reasonable steps to ensure that instructions are provided sufficient to enable an application to be filed within a required time have a legitimate expectation that their instructions will be carried out, and a failure on the part of such a representative to do so is an exceptional circumstance in the sense that it is unexpected. Further, an Applicant who engages a representative also has a legitimate expectation that advice they are given in relation to procedural matters is correct.

[31] In Robinson v Interstate Transport Pty Ltd,[16] a Full Bench of the Commission - confirming the approach in Clark - held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. The Full Bench stated that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant.

[32] In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application.[17] Representative error can include inactivity or carelessness of an applicant's representative.[18] It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant's conduct made to the error or the delay.

[33] I do not accept that there is an inconsistency in the approach in Clark and Davidson and the more recent Full Bench Decision in Rogers. In my view, Clark and Davidson and later cases including Robinson, emphasise the distinction between an applicant who provides clear and timely instructions to a representative to file an application with the Commission and takes reasonable steps to provide information to the representative to enable the application to be filed within time from an applicant who does not engage a representative in a timely manner, or who fails to provide clear instructions to file an application or to take steps to ensure that the representative has necessary information to file the application. This is the context in which the conduct of the applicant is central and an applicant who without reasonable explanation delays engaging a representative or fails to provide clear instructions or fails to provide relevant information to enable the application to be filed, will be less likely to succeed in establishing that representative error is a reasonable explanation for a late application.

[34] I am also of the view that Clark and Davidson are not authority for the proposition that an applicant who has acted in a timely manner to engage a representative, provided necessary information and given clear instructions to file an application, is required to take a further step to check that the instruction has been complied with, in order to establish blamelessness for the purposes of relying on representative error as an explanation for delay in filing. Those cases suggest that a failure on the part of an applicant to check that an application has been filed will weigh against a finding that an applicant is blameless in circumstances where a clear instruction to file an application was not given or where the applicant failed to take some necessary step so that the representative was able to file the application.

[35] Rogers is not inconsistent with those earlier cases. Rogers concerned circumstances where the employer opposing the grant of a further period argued that the representative rather than the applicant was required to provide an acceptable explanation for delay in filing an application. Rejecting that submission, the Full Bench in Rogers held that it was not necessary that the representative provide an acceptable explanation for a delay in filing an application. Rather the explanation in that case was that the legal practitioner the applicant had engaged and instructed to pursue his legal rights had failed to do so in a timely manner. The Full Bench also held that it was not necessary that the legal practitioner give an acceptable explanation for the delay in acting in accordance with instructions given by the applicant and filing the application within the required period. The observation of the Full Bench to the effect that it is not necessary for an applicant to demonstrate that he or she is blameless for delay beyond establishing that appropriate instructions were given to a legal practitioner in a timely manner is not inconsistent with the earlier cases.

[36] I am also of the view that is not always sufficient in a case where representative error is asserted as the reason for the delay in lodging an application, and said to be a significant consideration in establishing exceptional circumstances, that a representative simply issues a general mea culpa. In circumstances where the delay is extensive or there are periods of inactivity on the part of an applicant, evidence may also be required to justify a finding that the applicant is blameless including evidence about steps an applicant who has been impacted by representative error took to prosecute an application by providing information and instructions to the representative, and when those steps were taken.

[37] I am also unable to accept the submission advanced by Qantas that there is a particular species of representative error: namely error on the part of a solicitor as distinct from error on the part of a representative who is a paid agent or an officer or employee of a union. I accept that solicitors hold legal and ethical obligations. It is also the case that the reason for the existence of unions is to represent their members and to provide advice and support in circumstances where members experience issues in the workplace. Members of unions pay membership fees.

[38] In my view a dismissed employee who seeks support and assistance from a union has every right to expect that the case will be handled with expertise and professionalism, and that necessary steps to prosecute the case will be taken in a timely manner. A union member has as much a legitimate expectation of expertise and professionalism on the part of a union as does the client of a solicitor. The same could be said in relation to expectations of a paid agent. Unions, lawyers and paid agents are all recognised in various parts of the Act. The fact that paid agents are not subject to a formal regime of ethical obligations does not lessen the expectation of those who seek their assistance. It would be unusual or abnormal for a representative who is an officer or employee of a union or who is a paid agent, to act negligently by failing to file an application following a clear instruction to that effect from a client. To find otherwise would allow dismissed employees who instruct a solicitor to rely to a greater degree on representative error as an explanation for filing an application late, to the detriment of dismissed employees who engage a paid agent or use the services of a union to obtain representation.

[39] Any professional representative, particularly of a kind recognised in the Act, and a Union which receives fees from members for services, engaged to represent a dismissed employee, would be expected to manage the in-time filing of an unfair dismissal application. A failure on the part of any such representative may constitute an acceptable explanation for delay in making an application for the purposes of establishing that there are exceptional circumstances justifying the grant of a further period in which to make the application.

[40] In the present case, it is not in dispute that Mr Mellios' ALAEA representative, Mr Purvinas, knew that Mr Mellios' application was required to be filed with the Commission within 21 days of Mr Mellios' dismissal taking effect.

[41] Mr Purvinas was focused on the internal appeal process during that 21 day statutory timeframe and this may have contributed to the delay in preparing and filing Mr Mellios' application. However, consistent with the Decision of the Full Bench in Rogers, it is not necessary that Mr Purvinas provide an acceptable explanation for his own delay. This is not a case where the error was attributable to Mr Mellios directly. In such cases as has been established by the Full Bench in the case of Qantas Airways Limited v Mr Jarrod McRae[19] it should be clear to employees and representatives that waiting on an outcome of an appeal process must not delay prospective applicants in commencing an unfair dismissal application.

[42] In the present case Mr Mellios' evidence was that he was "totally reliant" on the ALAEA for advice throughout the course of the investigation and disciplinary process, including the termination of his employment. Mr Mellios gave an instruction well within the time for filing for the ALAEA to file an unfair dismissal application on his behalf. Given that the Union had represented Mr Mellios in the internal appeal process it is not necessary to inquire into whether Mr Mellios provided the Union with necessary information to make the application within time. It is also not necessary that Mr Mellios communicate with the Union to ensure that the application was filed within time once he had given the instruction in a timely manner. I also note that the application was signed by Mr Purvinas as the representative for Mr Mellios as an officer or employee of the ALAEA consistent with the right of the Union to represent Mr Mellios and the instructions given by Mr Mellios.

[43] This is a clear case of representative error and I am satisfied that this error is an acceptable explanation for the delay. This weighs in favour of Mr Mellios being granted a further period to make the application

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

[44] It is not in dispute that Mr Mellios was aware that the termination of his employment took effect on 26 February 2019. While this consideration does not provide a basis for a further period to be granted, it is a neutral consideration in the present case.

Any action taken by the person to dispute the dismissal - s.394(3)(c)

[45] It is not in dispute that Mr Mellios took steps to dispute the dismissal by instructing his Union representative to commence the internal appeal and later, to file an unfair dismissal application. On the other hand, it is well established that focusing on an internal appeal process to contest a dismissal at the expense of filing an unfair dismissal application in the required time, is not of itself an exceptional circumstance weighing in favour of the grant of a further period. This factor is therefore a neutral consideration in the present case.

Prejudice to the employer (including prejudice caused by the delay) - s.394(3)(d)

[46] The length of delay is short, with the application being filed one day out of time. There is no apparent prejudice to Qantas because of the delay other than it will be required to defend an unfair dismissal application and Qantas accepts that it would not be unduly prejudiced by the delay beyond the cost and disruption associated with defending the application.

[47] While not determinative, the matter of absence of prejudice weighs in favour of the exercise of discretion to grant a further period to Mr Mellios - albeit slightly.

The merits of the application - s.394(3)(e)

[48] In the matter of Kornicki v Telstra-Network Technology Group[20] 10 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"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."[21]

[49] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. Merit is a neutral factor in this case.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

[50] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[51] Applying this consideration to the present case, Rogers involved a person who was dismissed by Qantas and was granted a further period in which to make an unfair dismissal application in circumstances where representative error was relied on as the explanation for the delay in filing. I also consider there are a significant number of cases where a further period has been granted on the basis of representative error being found to be an acceptable reason for delay weighing in favour of a finding that there are exceptional circumstances. This is a matter that weighs in favour of granting a further period, albeit slightly.

[52] After weighing the matters in s. 394(3) of the Act, I am satisfied that there are exceptional circumstances justifying Mr Mellios being granted a further period in which to make his unfair dismissal application. I am also satisfied that in all of the circumstances the discretion to grant a further period in which to make an unfair dismissal application should be exercised in favour of Mr Mellios. I grant a further period for Mr Mellios to make his unfair dismissal application in U2019/3179 to 20 March 2019. An Order to that effect will issue with this Decision.

[1] Witness Statement of Stephen Purvinas dated 21 May 2019 at [14].

[5] (1997) 74 IR 413.

[6] (1998) 105 IR 1.

[7] [2019] FWCFB 2759.

[8] Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

[9] Nulty v Blue Star Group [2011] FWAFB 975.

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] - [39].

[11] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403.

[12] Stoginniadis op. cit. at [22].

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

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

[16] [2011] FWA FB 2728.

[18] Clark v Ringwood Private Hospital (1997) 74 IR 413.

[19] [2017] FWCFB 4033.

[20] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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