Fair Work Act 2009

s.604 - Appeal of decision

Appeal against Decision [2018] FWC 7651 (and Order PR703227) of Commissioner Johns at Sydney on 17 December 2018 in matter number C2018/6302.

[1] Mr Jason Cannon (Mr Cannon or the Appellant) has applied for permission to appeal and appeals a decision[1] (Decision) made by Commissioner Johns on 17 December 2018 in which the Commissioner declined to grant Mr Cannon's application for an extension of time to lodge an application for a general protections remedy under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The respondent to the application and to the appeal is Mr Cannon's former employer, Quad Services Pty Ltd (Quad Services or the Respondent).

[2] Directions were issued by the President on 16 January 2019 requiring the filing of material in advance of the appeal. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal. The appeal was heard on 4 February 2019. Mr Cannon represented himself, as he did before the Commissioner. The employer was represented both on appeal and at first instance by its Human Resources Manager, Mr Drummond. A decision was reserved which we now deliver.

[3] Mr Cannon was employed by Quad Services as a cleaner until his dismissal on 15 October 2018. He is a resident of regional New South Wales. He was dismissed on alleged performance grounds, a proposition he contests. Mr Cannon filed his general protections dismissal application in the Fair Work Commission (the Commission) on 8 November 2018. The application was filed three days after the 21 day statutory time period expired on 5 November 2018. It was therefore necessary for Mr Cannon to seek an extension of time under s.366(2), which he did in his general protections application (at Question 1.4).

[4] The Commissioner heard the application on 6 December 2018 and a Decision was published on 17 December 2018. The Commissioner refused an extension of time because he was "not satisfied that exceptional circumstances as envisaged by s.366(2) of the Act arise in this case".[2]

[5] An appeal under s.604 is by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[6] Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6]

[7] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]

[8] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.[10]

[9] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:

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

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

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

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

[10] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[11] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[12]

[11] The meaning of "exceptional circumstances" in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [13] (Nulty) as follows:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance." (emphasis added)

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[14]

[13] We now turn to the grounds of appeal.

[14] Mr Cannon's grounds of appeal in his Form F7 - Notice of Appeal (Notice of Appeal) primarily repeat contentions made at first instance about the merits (or otherwise) of his dismissal. Merits are a relevant consideration under s.366(2)(d) and we consider Mr Cannon's contentions in the context of the Commissioner's conclusions about the merits at [26] to [31] of the Decision. We note that the Commissioner concluded at [31] that Mr Cannon's general protections application "is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make this Application."

[15] In Question 2.1 of his Notice of Appeal, Mr Cannon contends that the Commissioner was inclined to grant an extension but then "denied the extenstion for reasons unknown" [sic]. We readily dispose of these propositions. They are without foundation. A review of the transcript of proceedings does not disclose any indication by the Commissioner of a view one way or the other on whether an extension would or would not be granted. The Commissioner delivered reasons in writing on 17 December 2018 after having reserved his decision eleven days earlier.

[16] The remaining grounds of appeal relate to the basis on which Mr Cannon seeks permission to appeal (Question 1.2). These concern the reasons for the delay. Mr Cannon repeats a submission made before the Commissioner that "if I wasn't given the wrong information it would have been in on time and would not have been late". We consider this as a ground of appeal which contests the Commissioner's conclusion at [21] that the reasons for delay weigh against extending the time for lodgment.

[17] In his written submission to this Full Bench and at the appeal hearing, Mr Cannon further explained why he considered the Commissioner's conclusion at [21] to be wrong.

[18] We take account of the fact that Mr Cannon is a self-represented appellant, and a person with a medical condition that impacts cognitive capacity. We indicate that we have taken into account all written and oral submission he has made on the issues of permission to appeal and the merits of the appeal, even where they may have not been clearly expressed in his Notice of Appeal.

[19] In its written submissions, the Respondent submits:

• Mr Cannon was employed with Quad Services on 2 July 2018.

• Mr Cannon was terminated from Quad Services on 15 October 2018 for performance issues. Mr Cannon was employed with Quad Services for just over three months.

• On 26 October 2018, Mr Cannon received an email from Ms Vanessa Nikolovska of Unfair Dismissals Direct advising Mr Cannon that strict time lines apply to employment claims, amongst other information.

• Mr Cannon lodged a Form F8 application on 11 November 2018.

• Commissioner Johns conducted an extension of time hearing on 6 December 2018 and released his decision on 17 December 2018.

• Mr Cannon lodged the Notice of Appeal on 30 December 2018 and sent through emails to the Commission that Mr Cannon labelled "appeal book pages" on 14 January 2019. This was outside the seven calendar day requirement under rule 56(3) of the Fair Work Commission Rules 2013.

• The Respondent agrees with the decision of Commissioner Johns in that exceptional circumstances as envisaged by s.366(2) of the Fair Work Act 2009 do not arise in this case.

• Mr Cannon, in his outline of submissions, raises no new reasoning as to why the original decision of Commissioner Johns should not be upheld and has not identified any legal or factual errors in the decision. Mr Cannon's final submission also has no reference as to a basis for a general protections claim.

[20] At the hearing before us, the Respondent was provided with the opportunity to respond to Mr Cannon's oral submissions. It reiterated the contents of its written submissions.

[21] For the reasons set out below, we consider it appropriate to grant permission to appeal given our finding that the Commissioner did not take account of Mr Cannon's cognitive impairment nor specifically address the question of representative error.

[22] We do not consider that the Commissioner made any error in the following conclusions:

• That action was taken by Mr Cannon to dispute his dismissal and this weighed in favour of granting an extension of time (at [23]);

• That there was no particular prejudice to the employer and this was a neutral factor (at [25]);

• That, taking into account the reverse onus in the FW Act and notwithstanding the limited fact finding undertaken by the Commissioner, Mr Cannon's application was not without merit and this weighed in favour of granting an extension of time (at [31]); and

• That the issue of comparative fairness did not arise in this matter (at [32]).

[23] The appeal accordingly concerns two issues: whether the Commissioner erred in concluding at [21] that the reasons for delay weighed against extending the time for lodgment, and whether the Commissioner erred in his consideration of all relevant factors (including the above) in drawing his overall conclusion at [36] that exceptional circumstances did not exist.

[24] On the issue of reason for the three day delay, at [15] the Commissioner characterised the reason as "confusion as between Fair Work Direct, the Fair Work Ombudsman and the Fair Work Commission". He observed that "it can be confusing... when private providers pass themselves off as, or have a similar name as, a government agency in an attempt to improve their chances of obtaining clients when recently dismissed employees 'Google' phrases such as 'unfair dismissal' or the like."[15] The Commissioner went on to conclude:

"[19] ...I appreciate that his confusion may be increased for people like the applicant who has a medical condition that may affect cognition.

[20] However, that confusion is not out of the ordinary course, or unusual or special. Rather it is, unfortunately, regularly, or routinely or normally encountered. Just as ignorance of the timeframe for lodgment is not an exceptional circumstance, neither is a lack of awareness about which agency an application is to be made to. Being the victim of a private provider which uses a similar sounding name to that of the government agency or uses Google Ad-words to increase the "hits" they receive from a Google search is not exceptional circumstance." [16] (references omitted)

[25] We do not consider that the Commissioner erred in this expression of principle. Confusion by a dismissed employee is not out of the ordinary course, unusual or special, nor is confusing, inconsistent or even misleading information on an internet search engine particularly unusual. Whether a private provider of unfair dismissal services makes a representation that misleads or is likely to mislead a dismissed employee is, in the first instance, a question of fact. Whether that misrepresentation is singularly exceptional or combined with other factors an exceptional circumstance is a conclusion to be drawn from those facts.

[26] However, in two respects the Commissioner erred in the application of this principle.

[27] Firstly, whilst the Commissioner recognised that Mr Cannon was a dismissed employee with a "medical condition that may affect cognition" and that "his confusion may be increased", it is not clear that he applied this unusual circumstance to the facts. The evidence before the Commissioner was that Mr Cannon was born with a brain tumour and that performing "unusual things are very hard for me".[17] Mr Cannon's conduct and state of belief in the post-dismissal period when he was investigating his rights and corresponding with a private provider of unfair dismissal services was clearly an unusual circumstance in which he found himself. The Commissioner appears to have approached the task of considering the circumstances advanced by Mr Cannon no differently from that of an employee with full cognitive capabilities. Whilst assessing exceptional circumstances must, at all times, remain an objective exercise, it is the factual circumstances relevant to the conduct of the particular dismissed employee that must be objectively considered. In failing to make due allowance for Mr Cannon's heightened risk of confusion on account of his pre-existing medical condition, the Commissioner's exercise of discretion may have miscarried.

[28] Secondly, in characterising the reason for delay as "confusion" the Commissioner failed to consider two related issues, the possibility of representative error and that he had filed an unfair dismissal claim the day prior to his general protections claim. Although Mr Cannon did not articulate his case in those precise terms, the evidence he presented required those matters to be considered. The failure to consider these factors was an error affecting the exercise of the Commissioner's discretion.

[29] Not having taken these factors into account, a significant error of fact and appealable error is disclosed on the face of the Commissioner's decision. We consider that both permission to appeal and the appeal should be granted for these reasons. The Commissioner's decision should be quashed and the matter re-determined.

[30] We are in a position to re-determine the matter and proceed to do so.

[31] Mr Cannon was aggrieved at his dismissal once he was notified of it on 15 October 2018. He commenced an internet search in the days that followed to secure advice on his rights with the intention of challenging his dismissal. Mr Cannon entered into a "Google" search engine words to the effect "what do I do if I've been fired for unreasonable reasons".[18] Mr Cannon submitted before the Commissioner that appearing in the search engine response was Fair Work Direct so he thought it was "Fair Work". Having regard to the Commissioner's Google search result from the enquiry he made when he was considering Mr Cannon's application,[19] we agree with the Commissioner's observation that it would have been easy to mistake Unfair Dismissals Direct with the Fair Work Commission at that time. Mr Cannon stated he telephoned Unfair Dismissals Direct on or about 23 November 2018[20] and was told by Ms Nikolovska that he should send his material to her within 21 days of 15 October 2018 "because that's when I was fired".[21] He said that Ms Nikolovska told him there was "a time limit of 21 days to take your employer for unfair dismissal"[22] and that he calculated the 21 days with reference to 15 October 2018.[23]

[32] Eleven days after the date upon which his dismissal took effect (26 October 2018) Mr Cannon received an email at 11.26am from an "Industrial Relations Specialist" Ms Nikolovska at Unfair Dismissals Direct. It read as follows:

"Subject: Termination of Employment- Request for Additional Information

Thank you for your enquiry to Unfair Dismissals Direct. We are sorry to hear of your recent dismissal, and hope to be in a position to guide you through the process and enhance your bargaining power through the provision of competent representation.

To allow us to complete our complimentary and strictly confidential assessment of your case, so that we can ascertain the action that may be taken against your former employer, please provide the following by return email as soon as possible:

A copy of your termination letter and any Employment Separation Certificate (if available);

A detailed timeline of the events leading up to your dismissal (please provide the relevant date alongside each event);

Details of any complaints you have made in relation to your employment;

Details of any leave you have recently taken, including medical certificates; and

Any additional information you feel is relevant to your claim.

There is no need for the assessment to be delayed simply because you do not have some of the documents in your possession. At a minimum, we require the provision of the items underlined above. If you have not received a letter of termination, please simply state this in your email reply.

Strict time limits apply to employment claims. It is not uncommon for employers to refuse to provide an Employment Separation Certificate or letter of termination, in the hope that they can stall the matter in the hope the employee will run out of time to pursue their claim. Please provide as much of the above that you have available, as soon as you can.

If we require anything further in order to complete our assessment of your case, we will let you know in due course. Thank you for consulting Unfair Dismissals Direct. We look forward to receiving your response.

[33] Five days later, at 9.28pm on 1 November 2018, Mr Cannon sent Unfair Dismissals Direct an email setting out the information which had been requested. Included in this email was advice from Mr Cannon that he was given his termination letter on 15 October 2018 and Mr Cannon said he sent a copy of this letter to Ms Nikolovska.[24] The letter dated 15 October 2018 from the Respondent had advised that Mr Cannon's employment with it was terminated on that day.

[34] The 21 day time limit expired on 5 November 2018. It was only on 7 November 2018 that Unfair Dismissals Direct advised Mr Cannon that they could not assist further, that they were not the body to lodge claims with and referred him to another adviser, Law Access. Mr Cannon says that Law Access informed him that he was out of time to file an unfair dismissal claim, and referred him to the "Fair Work" website.

[35] Whether Mr Cannon then viewed or spoke to the Fair Work Ombudsman is not clear, but on 7 November 2018 the Fair Work Commission received from Mr Cannon an on-line application (Form F2 - Unfair Dismissal Application) for an unfair dismissal remedy (s.394 of the FW Act).

[36] The following day, at 12:40pm AEDT on 8 November 2018, Mr Cannon was telephoned by an officer of the Fair Work Commission. He was asked to confirm the commencement date and termination date on his application and informed that if they were correct (which he acknowledged), he had not served the minimum employment period required for unfair dismissal claims. His attention was drawn to the general protections provisions of the FW Act. He says that he understood the officer to indicate that the unfair dismissal time period did not apply for those claims. Over the phone, Mr Cannon discontinued his unfair dismissal claim and sought a refund of his filing fee.

[37] Shortly thereafter, at 2.13pm AEDT on 8 November 2018, the Commission received an on-line application (Form F8 - General protections application involving dismissal) from Mr Cannon in the form of a general protections application involving dismissal (s.365 of the FW Act).

[38] In his unfair dismissal application filed on 7 November 2018, Mr Cannon had indicated "Yes" to the question (at 1.4) whether he was making the application within 21 days of his dismissal taking effect. In his general protections application filed on 8 November 2018, Mr Cannon replied "No" to the same question, and set out his reasons for the delay.

[39] It is noteworthy that, in fact, both 7 November 2018 and 8 November 2018 fell outside the 21 day period.

[40] It is apparent from this chronology that Mr Cannon considered his dismissal unfair and approximately eight days after the date upon which his dismissal took effect, asked Unfair Dismissals Direct to provide advice or support of some kind concerning his dismissal. On 26 October 2018, Unfair Dismissals Direct asked Mr Cannon to provide information, informed him that "strict time limits apply to employment claims" and that it would conduct a "complimentary and strictly confidential assessment of your case". It held out to him that it hoped to be in a position to guide him through the process, enhance his "bargaining power" and provide him with "competent representation".

[41] While the email sent to Mr Cannon on 26 October 2018 by Unfair Dismissals Direct did not specifically refer to a 21 day time limit, we are satisfied it was discussed in an initial conversation between Mr Cannon and Ms Nikolovska on or about 23 October 2018. The 26 October 2018 email did not make reference to any other avenue for information (such as the Commission's web site) nor did it indicate a time frame in which Unfair Dismissal Direct would be completing its "assessment" of Mr Cannon's situation, and although there is no statement in the email by Unfair Dismissals Direct that it was exercising legal authority regarding his dismissal or would be lodging an application on his behalf and doing so by a particular day, we consider a person with cognitive difficulties such as Mr Cannon may have had a reasonably founded misapprehension about the actual role of Unfair Dismissals Direct, having regard to what appeared to be generated by his Google searching, the other wording in the 26 October 2018 email, and the request from Unfair Dismissals Direct for documentary evidence. Mr Cannon's submissions before us suggested that while he did not appreciate the precise role of Unfair Dismissals Direct, he thought he was dealing with the right person in Ms Nikolvska and had made a claim against the Respondent, having regard to their telephone conversation and the information he provided at her request.[25]

[42] There may not necessarily be sufficient evidence to support a conclusion of representative error by Unfair Dismissals Direct in not filing proceedings on behalf of Mr Cannon, nor evidence that he expressly instructed Unfair Dismissals Direct to act on his behalf in filing proceedings, but we are persuaded that Mr Cannon was confused and under the impression that his interaction with Unfair Dismissals Direct would result in there being a claim against the Respondent made within the required time.

[43] It has previously been concluded, in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw),[26] that the period from the date the dismissal took effect to the end of the 21 day period does not form part of the "delay" to be considered, but the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately, whether that reason constitutes exceptional circumstances. Although dealing with an application made pursuant to s.394 of the Act, the Full Bench in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic expanded on the proposition outlined in Shaw as follows:

"...while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."[27]

[44] Having received the information sought from Mr Cannon on 1 November 2018, Unfair Dismissals Direct did not communicate back to Mr Cannon until 7 November 2018. By then, more than 21 days after dismissal had elapsed. Mr Cannon sought advice regarding his dismissal on the eighth and eleventh days after his dismissal took effect and provided information sought on the sixteenth day, but did not hear back from the private provider until day twenty-three. Not advising a dismissed employee about their rights until after a statutory period for filing a claim has expired, particularly when this requirement has been discussed, information relating to the date of termination has been provided, and the indication has been given that the case would be assessed, is clearly reckless and puts a dismissed employee in a position of potential prejudice.

[45] Mr Cannon was confused about his situation. His stated medical condition gives weight to a conclusion that his confusion was reasonably based. He was provided poor service by the private provider who was assessing his dismissal. While it might be said he had the opportunity to follow up his rights once he was informed of a strict time limit, we accept that he thought he had done what was necessary to pursue his claim. He only ascertained Unfair Dismissal Direct would not be assisting him when contacted on 7 November 2018, which was after the 21 day limit had elapsed. Given Mr Cannon's confusion and the basis for it, we consider there was an acceptable reason for this three-day delay and that he subsequently moved promptly to lodge, firstly an application for unfair dismissal remedy (also out of time) and then this application, upon receipt of the advice from Unfair Dismissals Direct. Having been advised by the Commission that he was ineligible to bring an unfair dismissal claim on 8 November 2018, he discontinued it immediately and filed this application approximately 3 hours later.

[46] The reasons for the three-day delay weigh in favour of an extension of time.

[47] We agree with the Commissioner's conclusion that Mr Cannon took action to dispute his dismissal and that this weighs in favour of an extension of time. He conducted an internet search for assistance. He contacted a private provider. He sent the private provider the information they requested. He also made an unfair dismissal claim in the Commission the day prior to the general protections claim. That claim was only discontinued when he was informed that he had not served the statutory minimum employment period.

[48] We agree with the Commissioner's conclusion that there is no specific prejudice to Quad Services beyond the usual considerations and that this is a neutral factor in considering whether to extend time.

[49] We agree with the Commissioner's conclusion that there is some apparent merit in Mr Cannon's application given his assertion that he was dismissed for exercising a workplace right and the reverse onus of proof in general protection matters. However, it is well established that where the evidence is not fully tested before the Commission, caution is required in placing undue weight on this factor. We consider this to weigh only somewhat in favour of granting an extension of time.

[50] We agree with the Commissioner's conclusion that this matter does not involve a comparison between Mr Cannon's circumstances and those of other employees.

[51] As is evident from our analysis, all but one of the matters that must be taken into account weigh in favour of a conclusion that there are exceptional circumstances. The other is neutral. Having regard to the particular circumstances of this case and considering them together, we are persuaded there are exceptional circumstances warranting an extension of time.

[52] Mr Cannon's cognitive limitations explain in part his confusion and delay. The poor treatment he received from Unfair Dismissals Direct compounded that confusion and prejudiced his rights. While he had not formally instructed Dismissals Direct to act on his behalf, he was led to believe his interaction with them would result in a valid claim being made against the Respondent and that he had, by 1 November 2018, done what was required of him. Unfair Dismissals Direct advised Mr Cannon it would complete an "assessment" of his case, it had discussed the 21 day time limit with him and had been furnished with the details revealing when it would elapse. Despite this, Unfair Dismissals Direct did not make contact with Mr Cannon to inform him it would not be in a position to assist until after the 21 days had elapsed. While this is not a case of representative error in the strict sense, we are nonetheless satisfied that it was the inaction of Unfair Dismissals Direct in this case that led to the three-day delay. We are persuaded, taking into account the relevant considerations, that the circumstances of this case are exceptional and that we should exercise the discretion vested in the Commission to extend the time for the making of this application.

[53] Members of the Commission regularly encounter parties who report having sought and sourced information about the FW Act and its operation but are unsure whether it was from the Fair Work Commission or the Fair Work Ombudsman. Invariably, they advise they have been in contact with "Fair Work". Their confusion arising from the similar names tends to blur in their minds from whom they have received particular advice and the distinct roles played by the Commission and the Ombudsman.

[54] This confusion is only exacerbated when private providers such as Unfair Dismissals Direct appear to be seeking to harvest work by utilising the term "Fair Work" on websites and the like. Unfair Dismissals Direct, for example, has employed the email address "fairwork@dismissalsdirect.com.au". By way of another example, there is an organisation in Western Australia trading as "Fair Work Legal Advice". To the extent that such practices cause confusion or have the potential to cause confusion, we express our concern. Such practices are, in our view, to be avoided.

[55] Our orders in this appeal are as follows:

1. That the Decision[28] of Commissioner Johns dated 17 December 2018 and Order[29] dated 17 December 2018 be quashed;

3. That time for the lodgment of Mr Cannon's application be extended;

4. That Mr Cannon's application may be lodged by 8 November 2018.

[56] The application will now be progressed by way of a conference at a time and date to be advised.

[1] [2018] FWC 7651 (Decision).

[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 288 affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[7] Also see Construction, Forestry, Mining and Energy Union and Others v Australian Industrial Relations Commission and Another [1998] FCA 1404; (1998) 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [26].

[8] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[10] See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

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

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

[13] [2011] FWAFB 975.

[14] Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 at [13]; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

[17] Transcript 6 December 2018 at PN33.

[18] Transcript 6 December 2018 at PN27.

[20] Transcript 4 February 2019 at PN141-145.

[21] Transcript 4 February 2019 at PN55-57.

[22] Transcript 4 February 2019 at PN174.

[23] Transcript 4 February 2019 at PN171-182.

[24] Transcript 4 February 2019 at PN67.

[25] Transcript 4 February 2019 at PN184-186.

[26] [2015] FWCFB 287 at [12].

[27] [2016] FWCFB 349 at [31].

[28] [2018] FWC 7651.

[29] PR703227.

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