Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - jurisdictional objection concerning whether employee dismissed - application dismissed

• [1] Georgette Daoud (Ms Daoud) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Transurban Limited (Transurban).

[2] Ms Daoud commenced employment with Transurban on 29 June 2016 and was engaged in the role of Credit Officer prior to her employment ending.

• [3] Ms Daoud's Form F2 unfair dismissal application was filed on 25 July 2023. The Form F2 identified that Ms Daoud's effective date of dismissal was 22 June 2023. The Form F2 indicated the application was not filed within 21 days of the dismissal taking effect and sought an extension of time for the filing of the application.

• [4] On 9 August 2023, Transurban filed a Form F3 employer response to the unfair dismissal application. The Form F3 indicated Ms Daoud resigned from her employment effective 22 June 2023 and raised a jurisdictional objection on the basis that Ms Daoud was not dismissed by Transurban. The Form F3 also identified that the application was not filed within 21 days of the dismissal and argued that an extension of time should not be granted.

• [5] I issued directions for the filing of material in relation to Transurban's jurisdictional objections on 24 August 2023. The directions were complied with by the parties. I listed the jurisdictional objections for determinative conference/hearing on 28 September 2023.

• [6] The directions issued on 24 August 2023 required any party seeking permission to be legally represented at the determinative conference/hearing to file a brief submission in support of the request, and provided the other party with an opportunity to file a brief submission opposing permission being granted. The directions also indicated I would decide the issue of permission on the filed material and advise the parties of my decision by 25 September 2023.

• [7] Transurban filed a brief submission seeking permission to be legally represented on the grounds that it would enable the matter to be dealt with more efficiently and because it would be unfair not to allow permission because Transurban does not have any specialist advocates employed and its Workplace Relations Lead is a witness. Ms Daoud did not file a submission opposing the granting of permission to Transurban and did not seek permission to be represented. On 25 September 2023, the parties were notified I had determined to grant permission to Transurban to be legally represented pursuant to s.596 of the FW Act on the basis I was satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

• [8] Ms Daoud represented herself at the determinative conference/hearing on 28 September 2023. Transurban was represented by Mark Minucci of counsel, instructed by Dominic Landvogt from King & Wood Mallesons.

• [9] At the commencement of the proceeding, I sought the views of the parties regarding whether a hearing should be conducted as required by s.399 of the FW Act. Ms Daoud did not express a view. Transurban expressed a marginal preference for a hearing, given the extent of cross-examination that was likely to occur. I determined to hold a hearing because I was satisfied it was appropriate given the large amount of evidentiary material filed and the extent of cross-examination that was likely to occur.

• [10] In addition to her Form F2 application, Ms Daoud filed a large amount of material in opposition to the jurisdictional objections. This was understandably a mixture of submissions and evidence. I admitted the following material filed by Ms Daoud as evidence with no objections from Transurban:

• Email from Ms Daoud to the Commission dated 6 August 2023 containing evidence and submissions about what caused the delay in filing the application. This document was marked Exhibit A1.

• A document dated 1 September 2023 which contained evidence and submissions from Ms Daoud in opposition to the jurisdictional objections. This document was marked Exhibit A2.

• A New South Wales Local Court Statement of Claim filed by Ms Daoud on 23 May 2023. The defendant is identified as Kwesi Dixon. I queried the relevance of this document and Ms Daoud indicated it demonstrated some of the other personal issues she has been dealing with. The statement of claim was marked Exhibit A3.

• A series of documents evidencing Ms Daoud sought assistance from the Fair Work Ombudsman concerning her employment with Transurban. These documents were marked Exhibit A4.

• An extensive number of emails between Ms Daoud and Transurban representatives following the end of her employment. The emails were marked Exhibit A5.

• An email exchange between Ms Daoud and a Transurban People and Culture Support employee dated 14 June 2023 whereby Ms Daoud was advised she would receive a long service leave entitlement when her employment ended. The emails were marked Exhibit A6.

• Emails between Ms Daoud and the Victims Support section of the New South Wales Department of Communities and Justice. The emails demonstrate Ms Daoud seeking assistance in relation to domestic violence on 6 June 2023. The emails were marked Exhibit A7.

• Further emails between Ms Daoud and the Fair Work Ombudsman regarding her employment with Transurban dated 19 July 2023. The emails were marked Exhibit A8.

• A letter to Ms Daoud from King & Wood Mallesons on behalf of Transurban dated 29 August 2023. The letter was marked Exhibit A9.

• A Transurban document headed 'Remuneration and Benefits Framework'. This document was marked Exhibit A10.

• Further emails between Ms Daoud and Transurban representatives dated 14 July 2023. The emails were marked Exhibit A11.

• Another email between Ms Daoud and the Fair Work Ombudsman dated 19 July 2023. This email was marked Exhibit A12.

• A series of text messages and photos involving Ms Daoud and Transurban representatives. The documents were marked Exhibit A13.

• A document dated 22 September 2023 containing reply evidence and submissions in opposition to Transurban's jurisdictional objections. This document was marked Exhibit A14.

• A statutory declaration made by Ms Daoud on 22 September 2023 regarding workplace bullying and harassment she experienced while working at Transurban. The declaration was marked Exhibit A15.

• A photo of Ms Daoud and other workmates taken on 22 June 2023. This was the last day Ms Daoud attended her workplace at Transurban. The photo was marked Exhibit A16.

• An offer of employment to Ms Daoud from OnDeck Capital Australia Pty Ltd (OnDeck) dated 8 June 2023. The letter has an Employment Agreement attached. The offer letter refers to Ms Daoud commencing on 26 June 2023 as a Recoveries Specialist and the Employment Agreement cites an annual salary rate of $75,000. These documents were marked Exhibit A17.

• [11] Ms Daoud was cross-examined on her evidence and also provided oral closing submissions at the end of the hearing.

• [12] In addition to its Form F3 response, Transurban relied on the following material in support of its jurisdictional objections:

• Outline of submissions dated 15 September 2023.

• Document recording Ms Daoud's exit questionnaire answers dated 22 June 2023. This document was handed to Ms Daoud during cross-examination. The document was marked Exhibit R1.

• Statement of Kim Allen (nee Puckeridge) dated 15 September 2023. The statement contained the following attachments:

• Attachment A: Performance Improvement Plan for Ms Daoud with a start date of 1 March 2023 and end date of 16 May 2023.

• Attachment B: Email from Ms Daoud to Ms Allen dated 8 June 2023. In this email Ms Daoud communicates her resignation effective 23 June 2023.

• Attachment C: Email from Ms Daoud to Ms Allen dated 9 June 2023. In this email Ms Daoud states her final day will be 6 July 2023, not 23 June 2023.

• Attachment D: An email request from Ms Allen to People and Culture Support dated 13 June 2023. The email seeks advice on whether Transurban can accept a notice period of two weeks for Ms Daoud.

• Attachment E: Screenshot of messages between Ms Allen and Ms Daoud about her new role on 14, 15 and 27 June 2023.

• Attachment F: Email from Ms Allen to Ms Daoud dated 14 June 2023 confirming 22 June 2023 as Ms Daoud's last working day.

• Attachment G: Email from Ms Daoud to Ms Allen dated 14 June 2023. This was in response to Ms Allen's earlier email. Ms Daoud thanked Ms Allen for the email confirming her resignation.

Ms Allen's statement was marked Exhibit R2, and she was cross-examined by Ms Daoud.

• Statement of Bryan Gillis dated 15 September 2023. The statement contained the following attachments:

• Attachment A: Email from Transurban's People and Culture Support to Ms Daoud at 12:44pm on 14 June 2023 which stated "Yes, you will receive your long service entitlement".

• Attachment B: Email from Transurban's payroll to Ms Daoud sent at 4:55pm on 14 June 2023 which indicated the previous advice was incorrect, and Ms Daoud is not entitled to a long service leave payment.

• Attachment C: Internal emails regarding Ms Daoud's long service leave and resignation.

• Attachment D: Medical certificates for Ms Daoud dated 31 May 2023 which contain a diagnosis of mixed anxiety and depression and prescribe Melatonin.

• Attachment E: Email from Mr Gillis to Ms Daoud dated 19 July 2023 indicating he is reviewing the correspondence between Ms Daoud and Transurban staff about her entitlements.

• Attachment F: Email from Mr Gillis to Ms Daoud dated 21 July 2023 in response to her long service leave claim, notice period issues and allegations of bullying.

• Attachment G: Email from Ms Daoud to Mr Gillis dated 21 July 2023 disputing Mr Gillis' response from earlier that day.

• Attachment H: Further email response from Mr Gillis to Ms Daoud dated 24 July 2023.

• Attachment I: Further emails between Mr Gillis and Ms Daoud dated 25 July 2023.

• Attachment J: Further emails between Mr Gillis and Ms Daoud dated 1 August 2023. Ms Daoud confirms she received a payment of $315.40 and has commenced proceedings in the Commission.

Mr Gillis' statement was marked Exhibit R3 and he was cross-examined by Ms Daoud.

• [13] Mr Minucci also provided oral closing submissions on behalf of Transurban.

• [14] Transurban's primary contention is that Ms Daoud voluntarily resigned from her position as Credit Officer because she found another job and was not "dismissed" within the meaning of s.386(1) of the FW Act. In the alternative, if I determine Ms Daoud was dismissed, Transurban opposes the granting of an extension of time for the filing of the application and argues Ms Daoud has not established there are exceptional circumstances. Given the Full Bench decision in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited, [1] I need to determine whether an extension of time should be granted for the filing of Ms Daoud's application before deciding whether or not she was "dismissed". However, in this case, Ms Daoud has referred to being forced to resign effective 6 July 2023. If that date is correct, the application was filed within 21 days of the dismissal. As a result, I consider it is more convenient to resolve that issue in the decision first.

• [15] Section 386(1) of the FW Act provides that a person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

• [16] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

• [17] Ms Daoud clarified in response to a question from me during her closing submissions that there are two separate limbs to her argument that she was "dismissed" by Transurban:

• Firstly, Ms Daoud argued she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by Transurban. This argument related to alleged bullying and harassment she endured during the employment. If accepted, this argument could bring the case within the definition of dismissal in s.386(1)(b) of the FW Act; and

• Secondly, Ms Daoud argued she was dismissed by Transurban because Transurban ended the employment relationship effective 23 June 2023, whereas she had not intended to resign until 6 July 2023. If accepted, this argument could bring the case within the definition of dismissal in s.386(1)(a) of the FW Act.

• [18] As Transurban submitted, Ms Daoud bears the onus of establishing that she did not resign voluntarily and that her resignation was "forced".[2] There must be evidence of some action taken by the employer with the intent to bring the employment relationship to an end or action that would have the probable result of bringing the employment relationship to an end.[3]

• [19] The primary problem with Ms Daoud's arguments is there is an array of documentary evidence that strongly suggests Ms Daoud made a voluntary decision to resign from her employment with Transurban effective 22 June 2023 because she found a new job with OnDeck.

• [20] Firstly, Ms Daoud sent an email to Ms Allen on 8 June 2023 which included the following content:

"Please accept this email as a formal notification of my intention to resign from my position as a Credit officer with Transurban.

In accordance with my notice period, my final day will be the 23rd June 2023. I have been given an exciting opportunity which relates to my studies in the criminology field that will help me grow career wise and personally...

My resignation isn't a personal one or relates to any issues with any staff member or the business. In years to come, once I am a defence lawyer, I hope if the opportunity arises, I would without doubt work for Transurban."[4]

The content of this email is completely inconsistent with Ms Daoud being "forced" to resign from her employment with Transurban.

• [21] Ms Daoud did subsequently send an email to Ms Allen and Alana Buckley on 9 June 2023 which stated: "In accordance with my notice period, my final day will be the 6th of July 2023, not the 23rd June 2023".[5] If that was the end of the matter, there may be force to Ms Daoud's argument that Transurban unilaterally imposed an earlier termination date, potentially constituting a "dismissal" within the terms of s.386(1)(a) of the FW Act.

• [22] However, at 12:17pm on 14 June 2023, Ms Allen sent an email to Ms Daoud which stated:

"Thank you for your time today to discuss your resignation email below.

As discussed, your last working day will be on Thursday 22 June 2023. This will be two weeks' notice from the date of your initial email sent on 8 June 2023..."[6]

• [23] Ms Daoud replied to Ms Allen's email at 12:49pm on 14 June 2023 and stated:

It has been an incredible journey working with you as my mentor and with Alana.

Thank you for your email confirming of my resignation. I am very grateful to you both for teaching me so much, and I shall miss everyone at Transurban in the NSW and VIC space..."

This email can only reasonably be read as Ms Daoud accepting her resignation would take effect on 22 June 2023 and provides no indication Ms Daoud was "forced" to resign.

• [24] Secondly, Ms Daoud tendered her offer of employment with OnDeck as evidence during the hearing.[7] The offer is dated 8 June 2023 and Ms Daoud gave evidence during cross-examination that she accepted the offer on that same date. The commencement date of her employment with OnDeck was 26 June 2023, as identified in the offer letter. Ms Daoud confirmed during cross-examination that she commenced employment with OnDeck on 26 June 2023 and remained employed by OnDeck when the hearing was held on 28 September 2023. The contract attached to the offer letter prescribes an annual salary rate of $75,000. That is higher than Ms Daoud's salary rate with Transurban, which was $70,362.[8] All of this is consistent with Ms Daoud deciding to resign from her employment with Transurban on 8 June 2023 because she had secured a better-paying job with OnDeck commencing on 26 June 2023.

• [25] Thirdly, Ms Daoud admitted in cross-examination that a morning-tea was held on 22 June 2023 to mark the end of her employment and that she received gifts including a candle, mug, flowers, pen and a gift voucher. Ms Daoud tendered a photo from this occasion,[9] which she admitted she asked to be taken, which shows her smiling (at least to some degree) and other colleagues smiling with farewell signs. One sign states: "F U Ange" but has "LOL" written next to it and the person is smiling.

• [26] Fourthly, Ms Daoud admitted she completed an exit questionnaire on 22 June 2023 which identified the reason for termination as "Terminate Employee > Voluntary", identified the main reason for leaving as "career change" and answered "Yes" to the question of whether she would work for Transurban again.[10]

• [27] Fifthly, Ms Daoud sent a message to Ms Allen on 27 June 2023 after she commenced employment with OnDeck which included the statement "we have it really good at Transurban".[11]

• [28] Ms Daoud's answer to this array of documentary evidence during cross-examination was that she "always liked to leave on a positive note" and was essentially not disclosing her real state of mind to preserve relationships for the future. Mr Minucci eventually had Ms Daoud accept that she "lied" in relation to the various documents. However, I think that is a harsh description of her behaviour. I accept Ms Daoud made a strategic decision to leave Transurban on a good note, despite some apparent issues with her treatment whilst employed by Transurban. That is understandable. I also accept Ms Daoud's grievances with Transurban likely contributed to her decision to find another job. However, a consequence of Ms Daoud's strategic decision to leave on a good note is that she has created a significant paper trail demonstrating she voluntarily resigned from her employment rather than being "forced". Substantial evidence would need to be provided to establish Ms Daoud's resignation was "forced" to counter this array of documentary evidence. I do not consider Ms Daoud has come close to providing sufficient evidence to counter the documentary evidence relied on by Transurban.

• [29] I accept that Ms Daoud feels genuinely aggrieved about how she was treated while working for Transurban. Ms Daoud became visibly upset when speaking about these issues during cross-examination. If it has not already, it would be prudent for Transurban to investigate the issues raised by Ms Daoud. Despite this, I am not satisfied Ms Daoud's evidence about allegedly being bullied and harassed during her employment is sufficient to counter the array of other evidence that suggests she voluntarily resigned effective 22 June 2023 because she secured employment with OnDeck. Further, aside from one potential instance in early 2021, Ms Daoud accepted in cross-examination that she did not raise her concerns while employed by Transurban. Ms Daoud gave evidence that she did not feel comfortable to make complaints. I accept this may have been the case, although the employee Ms Daoud appeared most aggrieved about during cross-examination was a co-worker rather than a superior, so it is not entirely clear why she did not feel comfortable to report this employee's behaviour to a superior. In any event, Ms Daoud's decision not to raise the complaints during the employment has consequences. Firstly, it denied Transurban any opportunity to address the complaints. Secondly, it will inevitably be extremely difficult for an employee to establish they have been "forced" to resign, when there is an array of documentary evidence to the contrary, and the employee is relying on bullying and harassment concerns that were not raised until after the employment ended.

• [30] I consider Ms Daoud voluntarily resigned from her employment effective from 22 June 2023. I am satisfied this is the correct date based on the email exchange between Ms Daoud and Ms Allen on 14 June 2023, which is also consistent with the farewell morning-tea held on Ms Daoud's last day in the office, which was 22 June 2023. As a result, I would find that Ms Daoud was not "dismissed" within the meaning of s.386(1) of the FW Act.

• [31] The Commission obviously does not have jurisdiction to determine whether Ms Daoud should have been paid for her accrued long service leave entitlements on termination as part of an unfair dismissal application.

• [32] However, I do feel it is appropriate to note that I consider it is extremely unfortunate that Ms Daoud was initially informed by Transurban that she was entitled to a payment for her accrued long service leave on 14 June 2023. The reversal of that decision appears to have triggered a highly emotional response from Ms Daoud, which is understandable, particularly given her diagnosis on 31 May 2023 for mixed anxiety and depression. It also appears Ms Daoud was dealing with some family violence issues around this time and was the plaintiff in a civil claim for a significant amount of money in the Local Court. It would have been open for Transurban to honour its initial advice and make a pro rata long service leave payment to Ms Daoud. It is likely these proceedings may have been averted if that had occurred. It is still open for Transurban to take this step, particularly given it is now clear that Ms Daoud was diagnosed with mixed anxiety and depression on 31 May 2023 and prescribed medication.

• [33] I stress to Ms Daoud that in making the above comments, I am not suggesting she has a legal entitlement to a payment for long service leave. I have not considered that issue because I do not have jurisdiction to determine it.

• [34] Given I have determined Ms Daoud's employment ended on 22 June 2023, she requires an extension of time for the filing of her unfair dismissal application.

• [35] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

• [36] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[12]

• [37] Given Ms Daoud's employment ended on 22 June 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 13 July 2023. The application was filed on 25 July 2023 and was filed 12 days outside the 21-day period. As a result, Ms Daoud needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

• [38] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

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

(f) fairness as between Ms Daoud and other persons in a similar position.

• [39] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[13]

• [40] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 July 2023. The delay is the period commencing immediately after that time until 25 July 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[14]

• [41] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[15]

• [42] Ms Daoud does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Ms Daoud has not provided any reason for any part of the delay.[16]

• [43] Ms Daoud referred to her medical issues as being the cause of her delay in filing the application and being unaware of the 21-day timeframe. I consider Ms Daoud's admission in cross-examination that she has been fit to work for OnDeck since 26 June 2023, aside from a few days of absence, suggests her medical issues would not have prevented her filing an unfair dismissal application within the 21-day period.

• [44] In addition, Ms Daoud gave evidence she had engaged a lawyer to assist her by 15 July 2023.[17] Despite this, the Form F2 was not filed until 25 July 2023. Ms Daoud did not provide an explanation for why it took a further 10 days for the application to be filed after a lawyer had been engaged.

• [45] I do not consider Ms Daoud has an overly persuasive explanation for the delay in filing her application and consider that weighs against the granting of an extension.

Did Ms Daoud first become aware of the dismissal after it had taken effect?

• [46] I consider Ms Daoud was aware her resignation would take effect on 22 June 2023 at least from when she received Ms Allen's email on 14 June 2023. I consider this to be a neutral factor.

What action was taken by Ms Daoud to dispute the dismissal?

• [47] There is evidence Ms Daoud took extensive steps to dispute the effective date of her resignation, and particularly her long service leave entitlements, after her employment ended on 22 June 2023.

• [48] I consider this factor weighs in favour of an extension being granted.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [49] Transurban may have suffered some minor prejudice because it would have assumed Ms Daoud would have filed an application within the 21-day period. I consider this to be a neutral factor.

• [50] Mr Minucci made the point during closing submissions that there is considerable doubt regarding whether any remedy could be ordered in relation to Ms Daoud's unfair dismissal application given she has not sought reinstatement and commenced in a higher paying job immediately after her employment with Transurban ended.

• [51] I accept this submission and find the merits of the application weigh against the granting of an extension of time.

Fairness as between Ms Daoud and other persons in a similar position

• [52] I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [53] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [54] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[18] Exceptional circumstances may 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] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension.[20]

• [55] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [56] I consider the absence of a satisfactory explanation for the delay and the lack of merit in the application weigh significantly against a finding of exceptional circumstances.

• [57] Not being satisfied that there are exceptional circumstances, I decline to grant an extension and dismiss the application.

• [58] I am not satisfied there are exceptional circumstances to permit the granting of an extension of time for the filing of Ms Daoud's unfair dismissal application. As a result, the application is dismissed and an order dismissing the application will be issued in conjunction with this decision.

• [59] If an extension of time had been granted, I would have found that Ms Daoud voluntarily resigned from her employment with Transurban effective 22 June 2023 and was not "dismissed" within the meaning of s.386(1) of the FW Act. I would have upheld Transurban's jurisdictional objection and dismissed the application.

Mr Matthew Minucci of Counsel on behalf of the Respondent, instructed by Dominic Landvogt (King & Wood Mallesons).

[1] [2022] FWCFB 234 at [17].

[2] Australian Hearing v Peary (2009) 185 IR 359 at [30].

[3] O'Meara v Stanley Works Pty Ltd PR973462 AIRCFB [2006] at [23].

[4] Attachment F to Ms Allen's statement, Exhibit R2.

[5] Attachment F to Ms Allen's statement, Exhibit R2.

[6] Attachment G to Ms Allen's statement, Exhibit R2.

[11] Attachment E to Ms Allen's statement, Exhibit R2.

[12] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[14] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[17] Attachment C to Mr Gillis' statement, Exhibit R3.

[18] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[19] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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

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