Fair Work Commission|2021-11-24

Jasmin Casey O'Neill v Southern Cross Care (SA, NT & VIC) Inc [2021] FWC 6276 (24 November 2021)

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application late after seeking review in State tribunal - no exceptional circumstances - application dismissed

[1] Jasmin O'Neill (Ms O'Neill or the applicant) has applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Southern Cross Care (SA, NT & Vic) Inc (Southern Cross, the respondent or the employer) on 28 September 2021.

[2] Ms O'Neill's application was received by the Commission on 25 October 2021.

[3] The application is outside the statutory 21-day period for making unfair dismissal claims. It is six days out of time. Ms O'Neill seeks an extension of time.

[4] On 1 November 2021 the Commission issued directions.

[5] Ms O'Neill's application was prepared and filed in her own right. After lodgement, she obtained legal advice and was represented in these proceedings. Materials were filed on her behalf on 8 November 2021.

[6] On 9 November 2021 Southern Cross filed a response opposing the application including the extension of time.

[7] On 16 November 2021 I granted permission for Ms O'Neill to be represented.

[8] I heard the extension of time matter by video on 17 November 2021.

[9] Ms O'Neill gave evidence in support of her application.[1] Southern Cross was represented by Mr Steve Brooks HR Business Partner.

[11] Southern Cross provides aged care services.

[12] Ms O'Neill was employed by Southern Cross as a Hotel Services Employee. Until dismissed, she worked for Southern Cross for approximately four and a half years.

[13] On 19 April 2021 Ms O'Neill sustained a lower back injury in the course of employment and made a workers compensation claim. Southern Cross is a self-insured employer under South Australian workers compensation laws. Southern Cross accepted the claim. Ms O'Neill was placed on a recovery and return to work plan. At the time of dismissal, Ms O'Neill had not returned to work after the injury.

[14] In the month prior to dismissal, a dispute arose between Ms O'Neill and Southern Cross concerning a COVID-19 vaccination mandate for staff working in residential aged care facilities following an announcement by the Australian government and a subsequent direction (10 August 2021) by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA).

[15] By letter dated 23 August 2021, the employer required evidence by 30 August 2021 that Ms O'Neill had either been vaccinated or had made an appointment to be vaccinated.

[16] Over the following month, correspondence was exchanged between Southern Cross and Ms O'Neill.[2]

[17] By the deadline, Ms O'Neill had not been vaccinated. Ms O'Neill had concerns about being vaccinated, including with vaccination ingredients, a belief that current vaccines were experimental and any possible impacts with her back injury treatment.

[18] By letter dated 21 September 2021, the employer advised Ms O'Neill that she had not been rostered after 16 September 2021 due to the direction of the State Co-ordinator for South Australia. Southern Cross invited Ms O'Neill to provide information or submissions on why her employment should not be terminated.

[19] By further letter dated 28 September 2021, Southern Cross (via Mr Brooks, HR Business Partner) advised Ms O'Neill that it had "decided to terminate your employment, without notice, for refusing to carry out a lawful and reasonable direction and thereby resulting in the frustration of your employment contract", effective that day.

[20] The following day, 29 September 2021, a different officer of Southern Cross (a Mr D'Souza, Senior Claims Manager) wrote to Ms O'Neill in which the employer gave "notice that your weekly payments will be discontinued at the expiration of 14 days from the date you receive this letter." The reason given asserted that Ms O'Neill had "breached your obligation under the [Return to Work] Act" by not following a direction, was precluded from undertaking duties in a residential aged care facility and was unable to work under the recovery and return to work plan. The letter advised Ms O'Neill that she had one month to apply for a review of "this decision" to the South Australian Employment Tribunal (SAET). The letter did so in the following terms:[3]

"Section 48(6) and (7) of the Act requires Southern Cross Care Incorporated to give you 14 days' notice prior to your weekly payments being discontinued. Therefore, we give you notice that your weekly payments will be discontinued at the expiration of 14 days from the date that you receive this letter. That date being 12/10/2021.

Copies of Sections 48(2)(f), 48(6) and 48(7) are attached for your information.

If you are not satisfied with this decision, you may apply for a review under Section 99 of the Act. To apply, a completed Application for Review must be lodged with the South Australian Employment Tribunal within one month from the dote you receive this letter. Further information about the dispute resolution process is attached, along with extracts of relevant sections of the Act.

If you lodge an Application for Review of this decision with the South Australian Employment Tribunal within one month from the date of receiving this decision, you are entitled to make on election, under Section 48(9) of the Act for the operation of this decision to be suspended, and weekly payments to continue or be reinstated, until the matter first becomes before a member of the Tribunal. If you make such an election, the Tribunal may as it thinks fit and from time to time further suspend the operation of the decision."

[21] Ms O'Neill examined the SAET web site. On 19 October 2021 she downloaded a SAET form A30 "APPLICATION - UNFAIR DISMISSAL" and populated it in her handwriting.[4] Then, at 4.04pm that day (19 October 2021), Ms O'Neill emailed the completed application to the SAET.[5]

[22] In answer to the question on the SAET form "explain why your dismissal is harsh, unjust or unreasonable" Ms O'Neill said in part:[6]

"Decided to terminate employment without notice for refusing to carry out a lawful direction of not getting a covid-19 vaccination.

Discontinue workcover due to not receiving vaccination pursuant to section 48(2)(f) of the Act.

My employer terminated me for not taking the covid-19 vaccine...

As a result of terminating me from my employment, my work cover is terminated..."

[23] The remedy sought by Ms O'Neill was "monetary compensation - $25,000 to $30,000".

[24] Two days later, at 9.46am 21 October 2021 Ms O'Neill received an email from an administrative officer of the SAET. It said:

If you are filing for unfair dismissal you will need to lodge your claim with the Fair Work Commission. I have included the link to their website:

[25] The following day (Friday 22 October 2021) Ms O'Neill went to a local library and searched the Commission web site via the link provided by SAET. Ms O'Neill found form F2 Unfair Dismissal Application. In reading the Commission web site, Mr O'Neill noticed she was required to file her application within 21 days of dismissal taking effect. She realised she was out of time.

[26] Ms O'Neill downloaded the form and during the course of that day (22 October 2021) populated it in typed form.

[27] Ms O'Neill also noticed from the Commission web site that there were different ways to send the application. She decided not to email the form. She wanted to hand deliver a hard copy because she believed that more reliable. She also wanted her mother to read the application to correct any errors.

[28] Three days later, after a weekend passed, on Monday 25 October 2021 Ms O'Neill travelled to the Adelaide CBD and hand delivered the application to a Commission staff member.

[29] Ms O'Neill's application states reasons why she considers her dismissal unfair. Those reasons include the following:[7]

"From having my injury, I felt it wasn't the right time to take the COVID-19 vaccination as I don't feel comfortable being injected with COVID-19 while it is in experimental use and my healing from an injury...This has put added stress and anxiety onto me. I have been so easily discarded. No one from my employment or work cover has mentioned my workplace injury."

[30] The remedy Ms O'Neill seeks is:[8]

"I am seeking my work cover to still be active. I have suffered a work place injury in April 2021. I am suffering with pain daily and still need doctors, physio and hydro appointments to ease my pain.

Unfortunately, Southern Cross Care have dismissed my employment as well as my work cover."

[31] At the time of lodging her unfair dismissal claim, Ms O'Neill did not have a current application before the SAET.

[32] Following receipt of legal advice after filing her application in the Commission, Ms O'Neill made an application to the SAET for restoration of weekly payments.

[33] In her unfair dismissal application to the Commission, Ms O'Neill acknowledges it to be out of time and offered "sincere apologies" for the delay.

[34] Ms O'Neill says that an extension of time should be granted because:

she made a genuine error in lodging in the wrong jurisdiction;

after lodging in the SAET within 21 days she was advised by SAET that an unfair dismissal claim to the Commission was the "most appropriate" and moved promptly after that time to file in the Commission;

she was "in quite some pain with my workplace injury";

she would be significantly prejudiced if not granted an extension as she remains unemployed; and

[35] Southern Cross submit there are no exceptional circumstances justifying an extension of time. It contends:

the decision to dismiss was because of failure to carry out a lawful and reasonable direction as an employee. This was a separate decision advised on a separate day and in a separate manner from the decision to give Ms O'Neill notice of weekly payments being discontinued under section 48(2)(b) of the Return to Work Act 2014 (SA);

the remedy being sought is the restoration of workers compensation payments which is not within the Commission's powers but within the SAET's jurisdiction;

there is nothing unusual about a dismissed employee being advised by their employer or a statutory insurer of the consequences of dismissal on an active workers compensation claim;

Ms O'Neill had plenty of notice of dismissal but took no independent advice about her rights until more than a month after dismissal;

Ms O'Neill did not act promptly to file the Commission application once aware of her right to do so;

Southern Cross will be put to cost and expense of defending a late application that it considers meritless.

[36] Section 394(3) of the FW Act provides:

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

(b) within such further period as the FWC allows under subsection (3).

(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

(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."

[37] The application can only proceed if the applicant can establish that "exceptional circumstances" exist within the meaning of section 394(3).

[38] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[9]

[39] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant[10]. A decision whether to extend time under section 394(3) involves the exercise of a discretion[11].

[40] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[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."[12]

[41] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[13]

[42] The application is six days out of time. It can only proceed if an extension is granted.

[43] I now consider each of the factors set out in section 394(3).

[44] The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[14] The absence of an explanation for any part of the delay will usually weigh against an applicant. 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.[15]

[45] However, 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.[16]

[46] The period of delay that requires 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 the explanation for delay is acceptable or credible.[17]

[47] I now deal with the reasons advanced by Ms O'Neill for the delay.

Filing in the wrong jurisdiction was a mistake borne of confusion

[48] I am satisfied that Ms O'Neill, being unfamiliar with legal processes, was confused. Through no fault of her employer, she misinterpreted the employer's letter of 29 September 2021 advising that she had a month to seek a SAET review of the decision to discontinue weekly payments. She wrongly conflated the decision about her workers compensation payments with the decision to dismiss.

[49] I find that in filing proceedings in the SAET on 19 October 2021 Ms O'Neill, in part, made a genuine mistake. She was wanting to challenge both decisions. That much is clear from the SAET Unfair Dismissal form she downloaded, completed and lodged. To the extent she was challenging the fairness of her dismissal and seeking compensation (as she then was), she made a genuine mistake borne of ignorance and confusion. That she was also disputing at the same time the discontinuance of weekly payments does not detract from this finding.

[50] It is not however unusual that a dismissed employee who has no particular legal knowledge is confused about their rights. Confusion in the wake of dismissal is not, of itself, indicative of exceptional circumstances.

[51] However, mistakenly filing an application in the wrong jurisdiction is capable of warranting an extension of time[18], but not necessarily so[19]. The relevant circumstances of each case must be examined to ascertain whether, objectively considered, it is exceptional.

[52] In this matter, there is one aspect to the post dismissal events that compounded Ms O'Neill's confusion and is unusual: that Ms O'Neill received a letter the day after dismissal about her workers compensation payments and that letter pointed her to review rights in the SAET. It turned her focus, albeit nearly three weeks later, to the SAET and its website.

[53] Although Ms O'Neill wrongly conflated the two different decisions by Southern Cross and despite the employer acting transparently in its correspondence on both days, I take this unusual feature into account. It is material. In part, it adds an element of reasonableness to the explanation for filing in the wrong jurisdiction and thus the delay.

[54] However, somewhat mitigating the force of this consideration is the fact that Ms O'Neill took no steps to seek independent advice to ascertain her rights or cure her confusion. Even though she felt strongly about the unfairness of the employer's vaccination mandate and upset by the discontinuance of weekly payments and had had plenty of notice of imminent dismissal and clear communication about the fact of dismissal, she took no advice post-dismissal. Her failure to seek out advice materially contributed to filing in the wrong jurisdiction.

[55] It is not unusual that a dismissed employee with no particular legal expertise who does not take post-dismissal advice about their rights would make a mistake borne of confusion such as filing in the wrong tribunal or filing late.

[56] This reason for delay weighs somewhat, but only somewhat, in favour of granting an extension of time.

[57] Ms O'Neill claims that she filed the unfair dismissal application late because she was dealing "with much stress" and was "in quite some pain with my workplace injury".

[58] No medical evidence was led about the extent of the workplace injury or its association (if any) with Ms O'Neill's capacity to take advice or activate unfair dismissal rights. Whatever stress and pain was being experienced did not prevent Ms O'Neill from commencing proceedings in the SAET.

[59] No doubt the reality of being dismissed and then being advised that weekly payments were to be discontinued was stressful. No doubt the reality of planning ahead without income hit home.

[60] However, there is nothing unique in a dismissed employee being stressed and anxious about those realities. It is well established that late lodgement arising from post-dismissal stress and income loss is not, of itself, an exceptional circumstance.[20] That, given the absence of medical evidence linking Ms O'Neill's medical condition with a relevant impairment to take advice or activate dismissal rights, does not weigh in favour of a finding of exceptional circumstances.

[61] Ms O'Neill claims she filed the unfair dismissal application late because she was told by the SAET that this was the "most appropriate" claim for her to make.

[62] This was information provided by SAET to Ms O'Neill during the delay period.

[63] That period can be divided into two parts: 20 October 2021 (day 22 after dismissal) being the day prior to being informed by SAET that filing in the Commission for unfair dismissal was the "most appropriate"; and 21, 22, 23, 24 and 25 October 2021 (days 23 to 27 after dismissal) being days from which Ms O'Neill was aware she had filed in the wrong jurisdiction until the day of lodgement.

[64] The reason for delay on 20 October 2021 is that Ms O'Neill, due to her mistake, wrongly believed she had filed an unfair dismissal application which could proceed. For reasons already outlined, delay on this day weighs somewhat in favour of granting an extension of time.

[65] The reason for delay over the next five days is less convincing. Ms O'Neill took 24 hours before acting on the information from the SAET. When she did so (on Friday 22 October 2021) Ms O'Neill learned from the Commission web site that she was already out of time. That notwithstanding, and though she populated her unfair dismissal application that day, she then contributed to the delay in three ways:

[66] Firstly, Ms O'Neill still took no advice on her rights even though she had by then been informed by SAET that she had already mistakenly filed in the wrong jurisdiction. Having been alerted on the morning of 21 October to that mistake, her failure to then seek advice (such as what to file and to do so immediately) materially contributed to the delay.

[67] Secondly, despite becoming aware on 22 October 2021 that she was already three days out of time, and despite populating the unfair dismissal form that day, Ms O'Neill decided to take further time. She put it this way in her evidence:[21]

"I wanted to get it all right. I wanted to take my time to ensure it was all correct".

[68] As noble as this sentiment was, and allowing for the possibility that Ms O'Neill was (as she says) not good at completing forms due to alleged dyslexia and wanting her mother to review the application, on 21 October 2021 Ms O'Neill decided to take further time - being time she did not have. She was already out of time and knew it, but rolled the dice in favour of giving herself more time.

[69] Thirdly, despite becoming aware on 22 October 2021 that she could file her application by email and having access to a computer (she had searched the Commission web site that day) Ms O'Neill chose not to do so believing that hand lodgement was more reliable. This was an unreasonable view to take given that she did not intend to lodge by hand that day, knew the next two days were the weekend, and given that email lodgement is close to instantaneous. As it turned out, Ms O'Neill did not hand lodge until the following Monday (three days later).

[70] Thus, of the six days that elapsed during the delay period, five of those were the consequence of cumulative unreasonable acts of omission and commission by Ms O'Neill.

[71] The explanation for the first period of delay (one day) somewhat weighs in favour of a finding of exceptional circumstances but the explanation for the second period of five days does not.

[72] I conclude that aspects of the reasons for delay considered individually (and especially the filing in the SAET on day 21) weigh somewhat in favour of granting an extension but the reason for delay considered overall, is not indicative of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

[73] Ms O'Neill was aware of her dismissal taking effect on 28 September 2021. Prior to that, she was aware that dismissal was a likely consequence of not being vaccinated or having a relevant medical exemption.

[74] She was neither confused about the date of dismissal nor the reason for dismissal.

[75] In the circumstances, this is a neutral consideration.

Action taken to dispute dismissal (section 394(3)(c))

[76] Ms O'Neill held a view at the time of dismissal that the vaccine mandate in aged care settings was wrong and her particular circumstances had not been properly considered.

[77] Her concerns heightened the day following when she was informed of the decision to discontinue weekly payments. She pursued unfair dismissal rights in the SAET, thus alerting the employer to her discontent with both of its decisions.

[78] For reasons considered above, this weighs somewhat in favour of granting an extension of time.

[79] Southern Cross point to the fact that if Ms O'Neill's application is allowed to proceed, it will have to defend proceedings in both the Commission and SAET. It relies on the fact that Ms O'Neill's unfair dismissal application (as filed in the Commission) seeks a workers compensation specific relief ("I am seeking my work cover to still be active").

[80] Whilst the Commission cannot order relief in those terms, it can order reinstatement (with back wages) or compensation. As the Commission is only bound by these statutory remedies and not to the relief sought, I do not conclude that these proceedings are misconceived or that the substantive issue Ms O'Neill is litigating in the Commission (her dismissal) is being litigated in SAET.

[81] Thus, whilst cost and expense to the employer in defending itself in the Commission would be in addition to defending its position in the SAET, this is not a factor that weighs against granting an extension. Separate questions are being litigated in both tribunals based on separate decision made by Southern Cross.

[82] The nature of prejudice to the employer in this matter is therefore not unique.

[83] However, the absence of prejudice would not itself be a reason to grant an extension.[22]

[84] In considering this matter overall, I accept and take into account that Ms O'Neill would sustain prejudice if an extension were not granted. I take this into account in the exercise of my discretion notwithstanding that section 394(3)(d) refers only to prejudice to the employer. I reject the submission by Southern Cross that it is impermissible in extension of time cases to consider prejudice to an employee. All decisions of the Commission under Part 3-2, including extension of time matters, are conditioned on the principle of a "fair go all round" to both the employer and employee (section 381(2)).

[85] That six weeks after dismissal Ms O'Neill remains unemployed with weekly payments discontinued is obviously a personal and financial burden. However, a period of unemployment and income loss after dismissal is not an unusual circumstance. The prejudice to Ms O'Neill should an extension not be granted neither unique nor exceptional.

[86] In the circumstances, this is a neutral consideration.

[87] The grounds on which Ms O'Neill challenges her dismissal appear to be twofold:

that the vaccination mandate on the aged care sector by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA) and the vaccine requirement by Southern Cross as a condition for continued employment was unreasonable and based on an "experimental vaccine" (including the employer's failure to provide details of the vaccine ingredients); and

there was a failure to take into account her particular circumstances including the timing of the vaccination requirement in circumstances where Ms O'Neill was being treated for a back injury.

[88] Southern Cross consider its vaccination requirement to have been a lawful and reasonable direction, and that it responded to Ms O'Neill in a fair and timely manner.

[89] Ms O'Neill's application is not exclusively a challenge to the reasonableness of the vaccination mandate by the Australian government or the State Co-ordinator. It is a claim in part framed around reasonableness of decisions made by her then employer.

[90] As I have not heard evidence or submissions on these questions, for the purposes of considering this extension of time request, the merits of the application are a neutral consideration.

Fairness between persons in similar position (section 394(f))

[91] This factor does not arise in this matter.

[92] In the context of a 21-day statutory time limit, the period of delay (six days) is not insignificant.

[93] A determination in this matter requires a balancing and weighing of relevant considerations, some of which are in favour of an extension and some of which weigh against or are neutral. Ms O'Neill's case for an extension is not without some merit but also presents barriers in satisfying the statutory test of exceptional circumstances.

[94] This is, in part, a matter where an applicant employee filed in the wrong jurisdiction. Ms O'Neill filed a claim in the SAET on day twenty-one (thinking she had a month to do so) because she was wanting to challenge discontinuance of her weekly payments and wanting to challenge the fairness of her dismissal. To that extent, she filed in the wrong jurisdiction.

[95] That Ms O'Neill filed an unfair dismissal application in the SAET on day twenty-one clearly weighs in favour of an extension of time and I give weight to that consideration.

[96] Other statutory factors are largely neutral or not relevant.

[97] If the delay was simply attributable to this genuine mistake borne of ignorance and confusion an extension of time would be warranted.

[98] However, only one day of the delay period is explicable on this account. Delay during the remaining five days from when Ms O'Neill was made aware of her mistake is not accompanied by a reasonable explanation. That delay period was the product of a series of misjudgements which cumulatively are material.

[99] I do not consider this a matter where the circumstances are otherwise exceptional such that misjudgements in the delay period can be put to one side. Ultimately, the lack of a reasonable explanation for five of the six days of the delay period outweigh the fact that Ms O'Neill filed in the wrong jurisdiction on day twenty-one. An employee who files their unfair dismissal claim in the wrong jurisdiction has an obligation to lodge in the correct jurisdiction without contributing to further delay once made aware of their mistaken lodgement. This is particularly so where the application is filed in the wrong jurisdiction on the last day of the statutory time limit. Ms O'Neill was informed of the mistaken lodgement on day twenty-three after dismissal. She did not immediately file on day twenty-three or on day twenty-four (when she became aware of the 21-day requirement). She unreasonably contributed to further delay. She did not file until day twenty-seven.

[100] Given it is ultimately Ms O'Neill's onus to establish exceptional circumstances, the circumstances are not, when considered overall, exceptional. Accordingly, the time for lodgement of application U2021/9558 cannot be extended. Being out of time, the application must be dismissed.

[101] An order[23] giving effect to this decision is issued in conjunction with its publication.

Mr A Siow, with permission for Ms Jasmin Casey O'Neill

Mr S Brooks, on behalf of, Southern Cross Care (SA, NT & VIC) Inc

[1] Statement of Jasmin O'Neill 5 November 2021

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

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

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

[12] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[13] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167 at [6]

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

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]

[16] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[17] 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]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[18] Palmer v RCR Engineering Pty Ltd [2009] FWA 1431; Poulton v Rail Infrastructure Corporation PR966972 (22 December 2005)

[19] Robertson v Zeugma Electrical and Communications Services Pty Ltd [2010] FWA 4525; Parkes v Melena Pty Ltd PR943310 (5 February 2004)

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

[21] Audio transcript 17 November 2021 3.02pm

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

Printed by authority of the Commonwealth Government Printer

Jasmin Casey O'Neill v Southern Cross Care

At a glance

Court

Decision date

Source

Judgment (161 paragraphs)

Jasmin Casey O'Neill v Southern Cross Care (SA, NT & VIC) Inc [2021] FWC 6276 (24 November 2021)

Parties

Legislation Cited (3)

Cases Cited (1)