'I followed up with the Union about an unfair dismissal case after our telephone conference and I hate to say it they forgot about me due to staffing issues/resources etc.

This happens and I cannot blame Sue for this as they are stretched.

Tomorrow the Union will prioritise the matter and assume you may hear from them.'[32]

(h) On 17 December 2019, the Union wrote to the Applicant and outlined, 'the Union is of the view that you would not have a viable case for unfair dismissal'.

(i) On 18 December 2019, he sent an email to the Union where, among other things, he queried 'do you agree with the USU that I don't have a case for unfair dismissal'[33]

(j) On 28 January 2020, he sent an email to the Union outlining, 'I'm following up on the last email below and any advice you have would be nice so I can get my life back on track?'[34]

(k) On 6 March 2020, he received an email from the Union in response to his complaint advising, 'with respect to your unfair dismissal rights, having conducted a preliminary review of your matter, keeping in mind that Council terminated your employment following an extensive absence and due to an inability to perform the inherent requirements of your job, you may not have had a viable unfair dismissal case'[35], and

(l) On 26 March 2020, he lodged an unlawful termination application (rather than an unfair dismissal application) with the FWC 'as upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination'.[36]

1. Section 774(1) of the FW Act provides that an unlawful termination application must be made within 21 days after the dismissal took effect, or within such further period as the FWC allows.
2. Section 774(2) of the FW Act lists the circumstances which the FWC must consider in allowing a further period for an application to be lodged as follows:

'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 employee to dispute the termination; 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.'[37]

7 The test of 'exceptional circumstances' establishes 'a high hurdle' for an applicant requesting an extension,[38] and is discretionary.[39]

8 In Nulty v Blue Star Print Group Australia Pty Ltd,[40] the Commissioner referred at paragraphs [20] and [21] to the 'well-established starting point for any consideration to extend a prescribed time' noting that the Federal Court in Lucic v Nolan[41] outlined that:

'Where specific periods are fixed they are quite short. That carries obvious implications. However, the time limitations are not absolute... the court is given discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained' (our emphasis added).

9 In Nulty v Blue Star Group Pty Ltd (Nulty),[42] a Full Bench of the then Fair Work Australia defined what constitutes 'exceptional circumstances' for the purposes of the FW Act as follows:

'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.'[43]

10 The Full Bench in Nulty further provided that, "mere ignorance of the statutory time limit... is not an exceptional circumstance".[44]

11 It is noted that although Nulty concerned the provisions of section 366(2) rather than section 774(2) of the FW Act, it has been held that the provisions are relevantly the same and so the same approach has been adopted regarding consideration of applications made under section 774(2) of the FW Act.[45]

12 Importantly, the onus to prove exceptional circumstances is on the Applicant as, for example, was noted by the Commission's predecessor in Sharon McLennan v Northern Territory Stolen Generations Aboriginal Corporation (McLennan),[46] namely:

'The onus rests with an applicant to demonstrate exceptional circumstances to justify FWA to exercise the discretion to extend time'.[47]

1. In his Application, the Applicant has offered that he was unaware of the 'unfair dismissal' process or the associated 'deadline', due to an alleged representative error by his then representative, the Union.

14 It is well established at common law that ignorance of the 21 day limitation period under the FW Act is not an 'exceptional circumstance'. Indeed, as the Full Bench in Nulty noted, the authorities indicate that it is all too common an occurrence for applicants in proceedings to be ignorant of the relevant limitation period.[48]

1. The Respondent submits that the Applicant has not demonstrated that he acted expeditiously and took reasonable steps to 'inform himself' of the most appropriate avenue of redress for which he wanted to pursue.

16 In this regard, the Respondent notes the resources available on the FWC's website are sufficiently clear and accessible 'that any prospective applicant' for an application involving dismissal 'could make the decision to file an application' and have observed the applicable time limitations.[49]

17 In McLennan, an extension of time was declined by the FWC on the basis the applicant 'was not diligent' in obtaining or confirming legal advice and information.[50]

1. Further, as outlined above, it has been held in Nulty that it is 'all too common for dismissed employees to be unaware of time limits imposed in relation to making an application', and that:

'Parliament has chosen to condition the discretion to extend time for making such applications on the existence of exceptional circumstances. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance'.[51] (our emphasis added)

1. The Respondent submits that these circumstances are not exceptional and do not reasonably excuse the Applicant's significant 126 day delay in lodging the Application.

20 In McLennan, the applicant had argued that the reason she did not lodge her application earlier was because it took the union some time to respond to her queries about what her options were, and that she held a 'strong belief' that the union would lodge the application on her behalf. There was no evidence that the applicant had provided clear instructions to the union to lodge an application, and there was no evidence to suggest that she took sufficient steps to enquire about the status of her claim. The FWC found that the applicant was not diligent in confirming the progress of the matter, and ultimately found that the applicant had not established 'exceptional circumstances'.[52]

1. Further, in Long v Keolis Downer (t/as Yarra Trams),[53] in declining a request for an extension of time, a Full Bench of the FWC noted the following as one of the propositions that should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

'The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged' (our emphasis added)

1. The Respondent submits that it is clear from the Application and the evidence filed that, from the date of dismissal, the Applicant and the Union discussed the potential to lodge an 'unfair dismissal' application. However, with reference to correspondence between the Applicant and the Union, it does not seem that a decision was made to proceed with an unfair dismissal application, and there is also no evidence that the Applicant had instructed the Union to proceed with an unfair dismissal case. In fact, the correspondence between the Applicant and the Union seems centred around the Union providing advice to the Applicant about the viability of an unfair dismissal case.
2. Although there was consideration of an unfair dismissal application, relevantly, there is no mention, or evidence to suggest, that the Applicant and the Union ever discussed or contemplated lodging an unlawful termination application with the FWC. As such, the Respondent submits that there has not been any representative error by the Union with respect to this Application as an unlawful termination application was not discussed.
3. It is noted that the Applicant does not expressly state that he actually instructed the Union to lodge an unfair dismissal or unlawful termination application, only that he sought their advice in relation to the viability of an unfair dismissal application, and briefly followed up on this advice in one email within the limitation period. The Respondent submits that the Applicant has displayed an indifference to making an application, and was 'not diligent' in this regard.[54]
4. There is no evidence before the FWC regarding when the Applicant first gave instructions to the Union to lodge the Application on his behalf, if any, or any action taken by the Applicant during the limitation period to ensure that the Union was acting on those instructions. In this regard, the Respondent submits that the Applicant's position in the present proceedings is analogous to that of the applicant in McLennan, in which an application for extension of time was ultimately dismissed.
5. The Union eventually advised the Applicant that it did not think he had an unfair dismissal case. This advice was provided to the Applicant at least 101 days before the Applicant subsequently made this separate unlawful termination Application to the FWC. This additional significant delay further highlights a reckless indifference by the Applicant to make an application, and further weighs against the circumstances being considered 'exceptional'.
6. As the burden of proving the existence of 'exceptional circumstances' lies with the Applicant, the Respondent submits that in the absence of any evidence confirming that he had instructed the Union to lodge the unlawful termination Application, the FWC cannot accept the Applicant's bald assertion that he was impacted by an alleged representative error of the Union. The Applicant has also failed to provide a credible reason for the delay for the entire period for which the Application was late.[55]
7. Perhaps tellingly, and despite the Applicant's request that it do so, the Union has not provided evidence in support of the Applicant's application for an extension of time.

Section 774(2)(b) - any action taken by the person to dispute the dismissal

1. In his email to a representative of the Respondent after his dismissal, the Applicant indicated that he had not been expecting to be dismissed and that he would 'continue to seek legal assistance'.[56]
2. It is noted that:

(a) on 31 October 2019, correspondence to the Applicant indicated that there would be discussions around 'prospects in relation to make a claim for unfair dismissal',[57] and

(b) on 11 November 2019, the Applicant sent an email to his Union representative querying whether there was 'any further news on the unfair dismissal'.[58]

1. While it appears that the Applicant was in contact with his then representative, the Union, during the 21 day limitation period,[59] there is no evidence before the FWC regarding what instructions, if any, the Applicant provided the Union during this period in respect of disputing the dismissal.
2. The Applicant does not assert, and offers no supporting evidence to suggest, that he notified the Respondent at any time during the limitation period, or at any other stage, of his intention to dispute the dismissal.
3. Accordingly, the Respondent submits that the delay was not related to any action by the Applicant to dispute his dismissal from the Respondent, and that this factor weighs against the FWC exercising its discretion under section 774(1)(b) of the FW Act.

1. The Respondent submits that it should not lightly be put to the cost and inconvenience of defending the Application in circumstances where it was lodged significantly out of time.
2. The Respondent further submits that an employer should be entitled to arrange its affairs on the basis that an application cannot be pursued beyond the limitation period in the absence of 'exceptional circumstances'.
3. The Respondent considers that the Applicant should not be permitted to proceed in the interests of 'fairness, justice, equity and good conscience' as the Respondent has been and continues to be prejudiced by having to expend time and financial resources in responding to:
   • (a) the Application; and

(b) other matters associated with the Applicant's former employment.[60]

37 In any event, the Respondent submits that a mere absence of prejudice to an employer is an insufficient basis for the FWC to exercise its discretion under section 774(1)(b) of the FW Act to grant an extension of time.[61]

1. Due to the consideration of this jurisdictional objection, the Respondent has not provided a substantive response to the allegations in the Application regarding why the Applicant's dismissal was not unlawful.

39 However, the Respondent submits that the Application has no reasonable prospects of success as the Applicant was not dismissed for any prohibited reason alleged in the Application. The termination letter issued to the Applicant on 31 October 2019 made clear that he was being terminated as a result of unauthorised absence and a failure to follow lawful and reasonable direction to attend meetings and return to work.[62]

1. It is noted that the Applicant has alleged that he was also dismissed as a result of his perceived religion and race. In this regard, the Applicant merely alleges that his former colleagues had made certain comments about his perceived race or religion, and provides no evidence connecting this with his actual dismissal by the Respondent.

41 The Respondent notes that the correspondence between the Applicant and the Union outlines that the reason for his dismissal was his unauthorised absence from work and an inability to perform the inherent requirements of his role.[63]

1. The Respondent vehemently denies that the Applicant was dismissed for any prohibited reason, and confirms that it will strongly contest the Application in the event the FWC elects to exercise its discretion to grant the Applicant an extension of time.

Section 774(2)(e) - fairness as between persons in a similar position

1. The Respondent submits that the decision of McLennan illustrates circumstances in which persons in a similar position to the Applicant were not granted an extension of time in which to lodge their applications.

44 The Applicant has not established any differential treatment between him and other employees in a like position.[64]

1. In fairness and as a matter of consistency, the circumstances of the Applicant are not exceptional and do not justify an extension of time. This factor tells against the grant of an extension of time by the FWC.

46 The Respondent submits that the Applicant has failed to discharge the onus of establishing the existence of 'exceptional circumstances' in these proceedings, and provide a credible reason for the delay for the entire period for which the Application was late.[65]

47 The Respondent further submits that the alleged reasons for delay identified by the Applicant in the Application and his evidence are clearly not exceptional in nature, and that in consideration of all the relevant criteria required to considered by the FWC, the circumstances are not exceptional.[66]

1. Accordingly, the Respondent respectfully submits that the FWC should refuse to allow the Applicant a further period of time in which to file the Application under section 774(1) of the FW Act, and therefore dismiss the Application for lack of jurisdiction."

[18] On 24 April 2020 the Applicant submitted the following in reply:

1. I have been disadvantaged by this whole ordeal since my unlawful termination as I am not a legal practitioner and certainty not an employment or a compensation lawyer and I do not have any expertise in any of these fields.

2. I would note that during the initial hearing on 3 April 2020 to discuss the validity of hearing this matter the Respondent acknowledged that despite the fact that they lead the Council's Human Resources Department, they are unfamiliar with the legal process around Employment Law and had sought advice to prepare a response and represent them in any action taken.

3. The Respondent willingly undertook such action and expense, although now the Respondent's appointed Counsel in Points 34, 35 and 36 of their Outline of Argument argue that Council is prejudiced by having to incur such an expense, despite the fact that at the initial hearing it was argued that Council would not be able to formulate a reply without expert advice due to their unfamiliarity with Employment Law.

4. It can be seen that both parties in this matter are not at all familiar with the law surrounding Termination, however the main difference being that Council has the financial resources to engage experts to prepare a defence in the matter, and I am left to do my best to understand a process that is entirely foreign to me and that I have no expertise in.

5. Before and after my unlawful termination on 31 October 2019, I went to the USU and Carroll and O'Dea (USU appointed Lawyer) for assistance as I was unfamiliar with the processes involved in the unlawful termination legal procedures and workers compensation laws in NSW.

6. I went to the USU for the obvious reason, for urgent help and assistance as I was in unchartered waters and unsure of what to do because Council unlawfully terminated my role.

7. Given my case was complex, I went to the USU for advice. Now Council is trying to punish me for delaying an appeal to the Commission because I sought the advice from the USU is absurd.

8. The Respondent suggests that I should have done more with the USU. What more could I possibly do? Tell them what to do? The moment I mentioned I had sought my own legal advice, the USU refused to have anything to do with me? I was not ignorant, and my chronology of email exchanges demonstrates this.

9. The USU and Carroll and O'Dea advised me from day one I had two legal matters to deal with as part of my case.

10. The first concerns the unlawful termination and the second concerns the rejected workers compensation claim which caused my termination. Both these matters were linked and triggered the unlawful termination.

11. I could not lodge the application for unfair termination to the Commission earlier because I had not received proper advice on my workers compensation claim by the USU that was denied by Council.

12. My goal was to get my job back and I enjoyed working at Council. I was of the view that I would fall into the category of an injured worker and my job would be reinstated as all I wanted was my job back.

13. My case is extraordinary as I am tangled in a web of various facets that cover the motor vehicle third party processes in NSW, worker's compensation laws, unfair dismissal, and unlawful termination laws because I sustained an injury.

14. I had an injury at work that was aggravated by 2 separate motor vehicle accidents which I did not cause, and I was unlawfully terminated because I was absent from work to get better.

15. I did everything I could do legally by consulting the USU and took on their advice and guidance and that is what any person in my shoes would do. That is why I paid the USU weekly fees and became a member.

16. The USU failed in their duty of care due to their own in-house operational problems and accountability with staff. I have given evidence to support this.

17. I had no control of the USU staff and what their roles and responsibilities are as employees and I cannot tell them what to do or how they should do their job and I presumed they would do the right thing by me at all times.

18. I trusted the USU and I was not aware that USU staff were not fit to carry out their roles during this period and I had no clue of what was happening inside the USU and I thought it was standard procedure as they had stated that I can go back to work once my condition stabilises within a 2 year period.

19. I have never gone to the USU before in my career since I started my employment for Council back in 2002.

20. I am not familiar of any legal cases where a Union staff member neglects a case like mine or indirectly neglects a case because of their own health problems.

21. I am not familiar of any cases, where people get tangled in the same web as have I.

22. I do not believe this a common occurrence which people find themselves in where I had to navigate the waters of unlawful termination and compensation laws.

23. I do not believe the USU or any Union would intentionally neglect cases like mine, and this is highly unusual, and it happened because a USU staffer was unwell and this was the cause of delays and perhaps the staffer was also unfamiliar with the legal processes involved with regard to unfair dismissal and unlawful termination.

24. The Respondent is also unfamiliar with the processes involved and had to engage their own legal representation.

25. I believe the neglect by the USU on my case is unprecedented and despite this, I sought their continued help to get my job back as I thought this was the right thing to do.

26. The USU refused to assist me the moment I sought to obtain my own legal advice as I needed help as I was not getting the help I needed after the new year in 2020 as I was not told if I met the definition of an injured worker and whether I could go back to work.

27. I did not expect the USU would refuse to assist me after the admission from the USU staff member that I slipped off her radar and after I started to ask more questions.

28. I do not believe this is normally encountered with people in my situation as I only received formal advice from the USU on 17 December 2019 and that was 48 days after my date of termination.

29. I believe I was not given natural justice or proper help from the USU and as a result of their neglect, I cannot have my case reviewed is not the intent of Section 774(1) of the FW Act.

30. The Respondent is of the view that I should have done more. I do not know what more I could have performed as I followed up all my inquires in writing and this is separate from my calls to the USU.

31. Who was I to judge the USU about time frames when Council was not perfect in addressing complaints or dealing with local government matters?

32. The Respondent is suggesting I ought to have done more. My email exchanges show that I was proactive, and I wanted my job back and to get my life back on track.

33. The Respondent is so gung-ho about dates, but they fail to acknowledge their own mistakes.

34. I explained to Council that I was in contact with Council staff during my temporary absence from work and that they raised no objections.

35. On 2 August 2019, I advised my Manager Ms. Judith Portelli in writing that I needed more time to get well. The email read:

Next Wednesday I have a conference with me Rehab. Officer and family GP.

The Insurer/ Rehab. Officer had suggested that I now lodge a Workers Comp. claim as they are of the view my injury is related to the work injury to begin with.

I'm totally lost with this process as everything is confusing....

I cannot do any forms today as I'm not in Sydney.

I will complete any forms etc next week - Monday; as Vince mentioned he wanted completed forms in by 10am Tuesdays for payroll.

Any leave that I have will continue to be used and if I don't get paid so be it as it is what it is and I have other things on my mind.

With respect to resourcing (wow seems like nothing has changed in that place), I suggest that you probably plan my absence for another 12 weeks.

1. My Manager Ms. Judith Portelli did not object to my additional request for additional time away from work and became fixated on the workers compensation claim which are dirty words in Council.
2. Council understood I would not return to work prior to 2 November 2019 and yet they terminated me despite my efforts of explaining this to Council staff.
3. The USU wrote to me on 17 December 2019 with formal advice. This is a week before the Christmas 2019 shutdown and is the worst time to deal with anything.
4. I followed up on my matter in the New Year of 2020.
5. The covid-19 pandemic and the safety and wellbeing of myself, my family and others caused further delays as I could not see anyone in person, and I waited for their written advice.
6. I do not believe I was ignorant with the statutory time frame as those who I sought assistance were meant to look after my interests and did not give me the remedy within a reasonable time frame and when I did receive the response it was at the worst possible time for the Christmas and New Year shutdown.
7. My case also deals with a worker's compensation claim. I am not an expert when it comes to workers compensation law which had also complicated matters.
8. The Respondent states the application was lodged 126 days after the termination. I only knew of the remedy by the USU on 17 December 2019 and that was 48 days after my date of termination. Despite this, I continued to work with the USU about getting my job back as an injured worker under the workers compensation laws.
9. The Respondent confirms and agrees that on the 6 March 2020, the USU advised me I had no case of unfair dismissal where the USU advice was procedurally incorrect as my case was for unlawful termination.
10. The Respondent confirms and agrees the USU only gave me the final advice on 26 March 2020 which concluded my case and my dealings with the USU were also terminated by them as I was not categorised as an injured worker.
11. Whether the date was 6 March or 26 March 2020, this is the period the USU refused to assist me any longer and I lodged the Application to Commission on 27 March 2020 (within 21 days) for unfair termination as that was the correct procedural action.
12. Council terminated my role on 31 October 2019 and were fully aware that I sought leave up until 2 November 2019.
13. Council in its letter dated 3 October 2019 states my '...continued absence from work is negatively impacting the Town Planning section and creating an operational burden on that section...' and affirms that I did not have permission to be on leave since the 1 January 2019 despite evidence to the contrary and that since 16 September 2019 I had not given a reasonable excuse even though I clearly specified I needed more leave up to 2 November 2019.
14. The USU staff member Ms. Sue Kealy did not do her job properly and was not dismissed or terminated by her indiscretions because she had her own illnesses. The USU decided to support her.
15. I on the other hand was terminated because I had an injury and I gave clear instructions to the USU to help me as I needed help and I do not know of what more I could have done as I followed up in writing as a record and is further to all my attempts of endless calls.
16. I actioned any items the USU wanted me to do within immediate time frames and I was diligent to follow up on my case with the USU in writing as I had two legal matters to deal with. The first was the unlawful termination and the second was the rejected workers compensation claim that were interwoven. I could not contest the unfair termination without knowing where I stood on the workers compensation claim because I could have been defined as an injured worker; and If I was, I could be reinstated in my role within 2 years of termination.
17. It was on the 26 March 2020, when the USU advised me that there was,

...some doubt on both grounds but particularly about whether or not you were in fact an 'injured worker' which is defined as a worker who suffers and injury for which they are entitled to receive compensation.

As you identify in your email, you suffered no psychological injury and therefore are not entitled to compensation. As such, our view is that you do not meet the requirements for reinstatement as an injured worker under the Act.'

1. I believe there are exceptional and compassionate grounds on my case, and my case is highly unusual as I did not know where I legally stood on my case until 26 March 2020 where the USU stated I did not fit into the definition of an injured worker and I cannot go back to work.
2. I do not believe that I should be penalised in this case given the events that have shaped my life and were completely out of my control and I kept my former employer up to date and they preferred to ignore it and denied me fairness.
3. I only knew of the proper outcome from the USU on 26 March 2020 about my workers compensation claim and I was advised up until that point that I could be reinstated as an injured worker and that was not the case when they informed me I do not fall into the category of an injured worker and refused to help me further because I sort my own legal advice and I did not have a psychological inquiry. That is plainly unfair and unjust.
4. I believe that my case should be reviewed by the Commission as an application can be made outside the 21-day period and the Commission accepts the application as I am of the view that I was unlawfully terminated because of my injury and my temporary absence from work.
5. My case is for unlawful termination as I was terminated because of my absence from work which was due to an injury and I was unwell.
6. My time off was not opposed by Council and Council should not have terminated my role as they knew in writing I sought 12 weeks of further leave from the 2 August 2019 and never opposed it.
7. I believe I have presented valid reasons for the delay in lodging the Application which relates to an administrative error from the USU where I have grounds on unlawful termination as I was temporary absent from work due to injury.
8. I believe I have given a proper explanation of the entire period of the delay and that exceptional circumstances exist, and I hope the Application can proceed.
9. The Respondent is attempting to deny me access to a fair hearing and that is not the intent of the legislation."

[19] In the context of unfair dismissal matters, there have been two recent decisions where applicants have been granted extensions of time because of the representative error of their unions. Both cases provide useful guidance about the authorities in this area.

[20] In Boakes v St Johns Community Care Limited[67] her Honour Deputy President Asbury held that:

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

[30] In Robinson v Interstate Transport Pty Ltd,[68] a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. The Full Bench stated that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant.

[31] In the latter case an applicant is blameless and it is more likely that representative error will be given significant weight in consideration of whether there are exceptional circumstances justifying a further period to make an application.[69] Representative error can include inactivity or carelessness of an applicant's representative.[70] It is also apparent from the case law concerning representative error as an explanation for delay that it is necessary to balance the nature of the error and to consider the contribution that the applicant's conduct made to the error or the delay.

[32] In my view a dismissed employee who seeks support and assistance from a union has every right to expect that the case will be handled with expertise and professionalism, and that necessary steps to prosecute the case will be taken in a timely manner. A union member has as much a legitimate expectation of expertise and professionalism on the part of a union as does the client of a solicitor. It would be unusual or abnormal for a representative who is an officer or employee of a union to act negligently by failing to file an application following a clear instruction to that effect from a client. To find otherwise would allow dismissed employees who instruct a solicitor to rely to a greater degree on representative error as an explanation for filing an application late, to the detriment of dismissed employees who use the services of a union to obtain representation.

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

[34] In the present case, I am satisfied that Mr Boakes took reasonable steps to dispute his dismissal and gave instruction well within the 21 day timeframe for the AWU to file an unfair dismissal application on his behalf. Further, Mr Boakes communicated with the Union within the 21 day timeframe, on 12 March and on 19 March 2020, seeking an update on his unfair dismissal application. Mr Boakes sought a further update on 26 March 2020 when no response was received from Mr Grimwade to the correspondence sent on 19 March 2020. This is despite the fact that, in my view, it is not necessary that Mr Boakes communicate with the Union to ensure that the application was filed within time once he had given the instruction in a timely manner.

[35] I am also satisfied that the reason for the delay was wholly attributable to representative error on the part of Mr Grimwade. While I accept that Mr Grimwade had reasonably believed the application had been progressed through the AWU's ARMS system, the response of Mr Grimwade to Mr Boakes' correspondence seeking updates to the progress of his application leaves much to be desired. Mr Grimwade advised Mr Boakes on 12 March 2020 that the application was with the AWU's advocates team in Brisbane, and that he should hear from them probably late next week. Mr Boakes sent a further enquiry to Mr Grimwade on 19 March 2020 asking that a further update be provided as soon as possible. From the email correspondence tendered with Mr Grimwade's statement it does not appear that Mr Grimwade responded to Mr Boakes, until Mr Boakes contacted him again on 26 March 2020.

[36] By this stage the application was out of time. If Mr Grimwade had made more reasonable enquiries on 19 March 2020 when Mr Boakes requested an update on his application be provided as soon as possible, the error in filing the application brief through the ARMS system would have been identified and the application filed within the 21 day timeframe. Regrettably, this has now caused further delay to Mr Boakes having his unfair dismissal application dealt with.

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

[21] I respectfully adopt her Honour's reasoning.

[22] In Walton v DS Opco Pty Ltd[71], his Honour Deputy President Saunders held that:

[10] The Applicant contends that the delay in filing her unfair dismissal application was due to representative error on the part of her union, the Shop, Distributive and Allied Employees' Association (SDA).

[11] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 6 In Clark v Ringwood Private Hospital,7 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

• Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

• A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

• The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

• Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[12] It is not necessary for an applicant to demonstrate that they were "blameless" for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 8 However, as the Full Bench explained in Long v Keolis Downer,9 "an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by".

[13] The relevant sequence of events leading up to and following the Applicant's dismissal was as follows. On 30 March 2020, Mr Stephen Svoboda, the Store Manager of the Harris Scarfe Devonport store where the Applicant worked, called the Applicant into the office. Mr Svoboda then called Mr Ben Morrow, Regional Manager for Harris Scarfe, who told the Applicant that her job was no longer required and she was being made redundant. Mr Morrow also informed the Applicant that her redundancy would take effect from the close of business on the following day, 31 March 2020, but she did not have to work on that day. This was the first time that the Applicant was told that her position was redundant. No prior consultation had taken place with the Applicant.

[14] The Applicant is, and was at all relevant times, a member of the SDA. The Applicant left the store after her discussion with Mr Morrow and Mr Svoboda on 30 March 2020 and immediately called her SDA representative, Mr Andrew Coyle. The Applicant told Mr Coyle to do everything he needed to do to get the decision to terminate her employment on the grounds of redundancy reversed and if they could not get the decision changed then to bring an unfair dismissal application on her behalf.

[15] In the period between 30 March 2020 and the filing of her unfair dismissal application on 14 May 2020, the Applicant spoke to Mr Coyle quite a few times to find out what was happening. In one of those discussions Mr Coyle told the Applicant that they were preparing her unfair dismissal application. At no time during that period did anyone from the SDA tell the Applicant that the SDA had made a decision, or was considering making a decision, to delay the filing of the Applicant's unfair dismissal application until after the sale of Harris Scarfe's business had completed, even though that would result in the application being filed outside the 21 day time limit. The Applicant was not even aware of the existence of the 21 day time limit.

[16] At some time after her unfair dismissal application was filed on 14 May 2020, Mr Coyle informed the Applicant that an application had been filed on her behalf, but it was not until the Applicant's discussion with Mr Paul Griffin, Branch Secretary of the Tasmanian Branch of the SDA, on 28 May 2020 that the Applicant was told that her application had been filed out of time. During that conversation, Mr Griffin told the Applicant that the anticipated sale of Harris Scarfe's business was due to occur on the last day of the 21 day period but the sale was delayed.

[17] Following the termination of the Applicant's employment, Mr Griffin spoke to the General Manager of Harris Scarfe to raise his concerns about the redundancy of the Applicant. Mr Griffin says his concerns were dismissed by the General Manager.

[18] In late March and early April 2020, representatives of the SDA, including Mr Griffin, had discussions with Mr Vaughan Strawbridge, a partner of Deloitte Financial Advisory Pty Ltd, who was one of the receivers and managers (Receivers) appointed to the Respondent on 11 December 2019. Mr Strawbridge's appointment as a Receiver followed the appointment of voluntary administrators on the same day. In their discussions with Mr Strawbridge, the SDA asked questions and raised concerns about the redundancy of the Applicant and about 43 other employees of the Respondent. Mr Gerard Dwyer, National Secretary of the SDA, participated in such discussions on 3 and 8 April 2020. Mr Strawbridge explained to the SDA, among other things, that in order to secure the sale of the Respondent as a going concern, and to preserve the employment of the majority of the Respondent's about 1,200 employees, the Receivers needed to finalise a sale on terms acceptable to the buyer urgently, and ask creditors to approve a deed of company arrangement. Completing redundancies before the second creditors' meeting was essential to securing the buyer's agreement about the sale. Mr Strawbridge also answered the questions asked of him by Mr Griffin and other SDA representatives during these discussions. At no time did Mr Griffin or anyone else from the SDA inform Mr Strawbridge that the SDA was going to file an unfair dismissal claim on behalf of the Applicant, or any other person, against the Respondent. I accept Mr Strawbridge's evidence that he understood, based on his discussions with the SDA on 8 April 2020, that the SDA did not intend to press any claims on behalf of those members who had been made redundant; the Receivers were not on notice that the redundancies would subsequently be the subject of unfair dismissal or any other applications before the Fair Work Commission.

[19] Following the second meeting of creditors of the Respondent held on 9 April 2020, at which the terms of the deed of company arrangement relating to the Respondent and other entities were approved by creditors, the shares in the Respondent were acquired by a subsidiary of Spotlight Group Holdings Pty Ltd pursuant to a share sale agreement. As a result, ownership of the Respondent transferred to the Spotlight group of companies and the Receivers retired on 29 April 2020.

[20] Although the completion of the sale did not take place until 29 April 2020, I accept Mr Griffin's evidence that he was optimistic the sale would be completed within the 21 day period (i.e. by 21 April 2020) and, had that been the case, then the SDA would have been able to lodge the Applicant's unfair dismissal application within the 21 day period. However, on 17 April 2020, Mr Strawbridge informed the SDA that "final agreement has been difficult to lock down. We are however, hopeful this will occur next week which we are pushing hard for ..." Accordingly, the SDA was on notice by 17 April 2020 that it was unlikely to be able to execute its plan to file the Applicant's unfair dismissal application after completion of the sale but within the 21 day time period.

[21] Mr Griffin and the SDA had a clear conflict of interest. On the one hand they wanted, and were obliged (insofar as it concerned their members), to act in the best interests of the remaining 1,200 employees of the Respondent by doing all they could to assist, or not risk, the completion of the sale of the business and thereby secure the ongoing employment of those workers. As Mr Griffin explained in his statutory declaration:

"In circumstances where it was being represented to the SDA that any challenge to the decisions made on the part of the Receiver to terminate particular individuals including Ms Walton might jeopardise a sale process that would ensure continuing employment for 1,200 retail workers, the decision was made by the SDA to defer further claim on behalf of those affected employees until the sale process was completed and the employment of those retail workers was secured. This was a decision made by the National Executive of the SDA; it was not a decision in relation to which Ms Walton was consulted or acceded to by Ms Walton."

[22] On the other hand Mr Griffin and the SDA had a duty to act in the best interests of the Applicant, including by lodging her unfair dismissal application within 21 days of her dismissal. The obvious conflict of interest could have been managed in a number of ways. For example, when it was becoming apparent towards the end of the 21 day period that completion of the sale would not, or was unlikely to, take place prior to the end of the 21 day time limit, the SDA could have arranged for the Applicant to be given independent advice and representation in relation to her unfair dismissal claim. No doubt any such independent advisor would have recommended that the Applicant lodge her claim within the 21 day period. Alternatively, at the very least, the SDA could have explained all the circumstances to the Applicant and allowed her to make an informed decision as to whether to lodge her application within the 21 day period. Rather than take any step to deal with the obvious conflict of interest, Mr Griffin did nothing, and worse still, did not inform the Applicant that the SDA had made a deliberate decision, contrary to her interests, not to lodge the application within the 21 day period. This was a clear representative error.

[23] The sale completed on 29 April 2020, but it still took the SDA a further two weeks to lodge the application on 14 May 2020. Mr Griffin gave the following explanation for this delay in his statutory declaration:

"There was additional delay in the SDA filing Ms Walton's application after the sale had been completed because of COVID19 isolation protocols affecting the staffing of the SDA Tasmanian Branch's office which impacted upon the capacity of the SDA office to prepare and finalise the relevant application for filing. The COVID19 isolation directives have impacted at both National Office (based in Victoria) and State Branch levels to cause delays in processing claims and applications which would not ordinarily have occurred."

[24] I do not accept this to be a reasonable excuse by the SDA for the further delay in filing the application after 29 April 2020. The SDA should have had the application ready to lodge in the Commission within the 21 day period following the dismissal on 31 March 2020. It is not a difficult or overly time consuming application to prepare. Lodging the application itself is as simple as sending an email or making a telephone call. The delay from 29 April 2020 until 14 May 2020 is a further representative error by the SDA.

[25] The Respondent contends that this is not a case of representative error. Instead, the Respondent submits that the SDA made a deliberate decision not to file the application within the 21 day time period. The Respondent also contends that there has been no acceptable explanation given for the further delay from 29 April 2020 until 14 May 2020.

[26] I do not accept either of these contentions made by the Respondent. I accept that the usual case of representative error arises where a lawyer or union forgets to file an application in time or makes a mistake in calculating the 21 day period. However, they are not the only circumstances in which a representative may make an error. As I have sought to explain above, a representative who fails to address a clear conflict of interest and thereby fails their duty to act in the best interests of their client or member acts in error. More importantly, however, the focus under s 394(3) is on the conduct of the Applicant. In the present case, the Applicant acted immediately on being informed of her redundancy. She spoke to Mr Coyle on 30 March 2020 and gave him clear instructions to do everything he needed to do to get the decision to terminate her employment on the grounds of redundancy reversed and if they could not get the decision changed then to bring an unfair dismissal application on her behalf. Further, this is not a case where the Applicant gave instructions to her representative to file a claim and then sat on her hands for an extended period while the prescribed time for filing the application passed by. The Applicant engaged in numerous discussions with Mr Coyle to find out what was happening with her case. At no time prior to 28 May 2020 was the Applicant told that the SDA had made, or was considering making, a decision to delay the filing of her application outside the 21 day time period.

[27] As to the delay in the period from completion of the sale on 29 April 2020 until the filing of the application on 14 May 2020, the SDA does not have an acceptable explanation for the delay. However, the Applicant does have an acceptable explanation for this delay, namely, the error on the part of the SDA in failing to lodge the application during this period.

[28] In all the circumstances, I am satisfied that the whole of the delay in filing the application (21 April to 14 May 2020) is to be attributed to the errors made by the Applicant's representative. No part of the delay was occasioned by the conduct of the Applicant; she is blameless for the delay.

[29] For the reasons stated I consider the Applicant's explanation for the delay in lodging her application to be an acceptable and reasonable explanation for the whole of the delay. This weighs in favour of a conclusion that there are exceptional circumstances.

[23] I respectfully adopt his Honour's reasoning.

[24] There were 147 days between when the termination of the Applicant's employment took effect and when a valid Application was filed with the Commission. Therefore, it was 126 days late.

[25] Members of the Commission are 'bound to act "judicially" in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality.'[72] However, the Commission must also perform its functions and exercise its powers in a manner that:

1. is fair and just;

1. is quick, informal and avoids unnecessary technicalities.[73]

[26] In his application, the Applicant gave as the reason for the delay "because I sought the advice from my work union the USU." He also contends that "I had no knowledge of the legal framework as I am not an employment lawyer..."

[27] In the present matter the evidence demonstrates that:

1. The Applicant's employment was terminated on 31 October 2019.

2. On that day:

   1. the solicitor that the Applicant was dealing with in relation to his workers' compensation claim advised him to contact his USU contact person "to discuss [his] prospects in relation to making a claim for unfair dismissal."
   2. the First USU Contact advised the Applicant she was on leave until 18 November 2019. She offered to set a meeting with her replacement "next week".

3. On 1 November 2019, the Applicant received an email introduction to the another USU contact (Second USU Contact).

4. On 5 November 2019, the Second USU Contact invited the Applicant to contact her.

5. On 11 November 2019, the Applicant wrote to the Second USU Contact and asked if "there has been any further news on the unfair dismissal".

6. On 21 November 2019, the 21 day time limit for the filing of the present application or unfair dismissal application passed.

[28] What is apparent is that the factual circumstances in this matter can be distinguished from those in both Boakes and Walton. In both of those matters, the Applicants gave clear instructions to file unfair dismissal claims to contest the termination of their employment and pressed the matter with their unions by following up with them.

[29] That is not what has occurred in this matter. As of 31 October 2019, the Applicant was on notice about the potential for an unfair dismissal claim. However, there is no evidence that the Applicant instructed the USU to file an unfair dismissal claim. There is no evidence that the Applicant instructed the USU to file an unlawful termination claim. There was one email, on 11 November 2019, that might be described as a follow up, but nothing else in the 21 days after dismissal. It is just not good enough. The Applicant did not take all reasonable steps to provide instructions to the USU or to follow up with it.

[30] My finding on this point will likely be met by the Applicant responding by saying (as he has contended in his submissions), that he knew nothing about unfair dismissal laws or unlawful termination claims, that he is not a lawyer, not an employment lawyer and that he was relying on experts. All of those contentions are a submission about ignorance of the law.

[31] Ignorance about unfair dismissal laws or unlawful termination claims or about the timeframe for lodgement is not an exceptional circumstance.[74]

[32] While accepting that the Applicant is not an employment lawyer, he is an intelligent, educated and articulate individual. At some point the Applicant informed himself about unlawful termination claims. He says,

"...upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination..."

[33] The Applicant provides no explanation about why he could not have done the same research in the period between the termination of his employment on 31 October 2019 and the expiration of the 21 days on 21 November 2019. Had he done so he could have instructed the USU to make a claim. He could have pestered them with follow up emails and calls. Had he done this, and the USU failed to lodge a claim, likely there would have been exceptional circumstances occasioned by representative error (as in both Boakes and Walton). However, in this matter there was a lack of activity and diligence on behalf of the Applicant. He is not entitled to say, "I trusted the USU to look out for my interests". That is not enough to establish representative error.

[34] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Section 774(2)(b) - Any action taken by the employee to dispute the termination

[35] I deal with the Applicant's lack of activity and diligence above. Other than to file this application late, the Applicant took very little action to dispute the termination.

[36] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Section 774(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[37] Other than the usual prejudice associated with delay, the Respondent does not assert any exceptional prejudice.

[38] Therefore, this factor is a neutral factor in deciding whether to grant the Applicant a further period to make his application.

Section 774(2)(d) - The merits of the application

[39] In the matter of Kornicki v Telstra-Network Technology Group[75], the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth) in the context of an unfair dismissal matter. In that case the Commission said:

"The merits of the substantive application. If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgment. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[76]

[40] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[41] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings, I do not, in this decision, embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[42] The substantive factual contest between the Applicant and the Respondent is what was the substantial and operative reason for the termination of employment. The Respondent contends it was an innocent reason associated with the Applicant's unauthorised absences from work and failure to attend work as directed. The Applicant alleges unlawful reasons associated with temporary absence from work, race and religion (or purported religion). This is not a factual dispute that can be resolved at a jurisdictional hearing. However, having regard to the materials presently filed in the matter, the Applicant's claims are not strong.

[43] But, for present purposes, the Commission, as presently constituted, is satisfied that the Applicant's case is not one that is without merit or lacking in any substance.

[44] Because the Applicant's case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Section 774(2)(e) - Fairness as between the person and other persons in a like position

[45] I have already distinguished the Applicant's case from those in in both Boakes and Walton.

[46] Therefore, this factor weighs against granting the Applicant a further period to make his application.

[47] When the s.774(2) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Consequently, they are not exceptional circumstances.

[48] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[49] An Order [PR719373] to this effect will be issued with this Decision.

[1] Nulty v Blue Star Group, [2011] FWAFB 975; 2011, 203 IR 1 at [13].

[2] Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[3] [2019] FWCFB 2384.

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

[5] Halls v KR & MA McCardle and Ors [2014] FCCA 316.

[6] 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).

[7] Please refer to Attachment 1, 'Dr Giblin records)'

[8] Please refer to Attachment 2 'Unauthorised Absence from work 3_10_2019'.

[9] Please refer to Attachment 3, 'Chronology of Email from Romic to Council', for a chronology of exchanges.

[10] Please refer to Attachment 3, 'Chronology of Email from Romic to Council', for a chronology of exchanges.

[11] Please refer to Attachment 4 titled 'Direction to Attend Work 9_10_2019'.

[12] Please refer to Attachment 5 titled Worker's Injury Claim Form and Attachment 6 titled Certificate of Capacity Certificate of Fitness for Work 10_10_2019.

[13] Please refer to Attachment 3 titled Chronology of Email from Romic to Council.

[14] Please refer to Attachment 7 titled Romic Response to Council 14_10_2019.

[15] Please refer to Attachment 8 titled Section 78 Notice.

[16] Please refer to Attachment 9 titled Direction to Attend Work 17_10_2019.

[17] Please refer to Attachment 10 titled Notice of Meeting_Show Cause 21_10_2019.

[18] Please Refer to Attachment 11 'Show Cause Letter to Attend Work 22_10_19'.

[19] Please Refer to Attachment 12 'Letter Termination of Employment 31_10_19'.

[20] Please refer to Attachment 13 titled USU advice 17_12_2019.

[21] Please refer to Attachment 14 titled Complaint to USU by Romic 3_3_20.

[22] Please refer to Attachment 15 dated USU response 6_3_20.

[23] Please refer to Attachment 16 titled Carroll and O'Dea Letter (1)_ 13_3_20 and Attachment 17 titled Carroll and O'Dea Letter (2) _ 17_3_20.

[24] Please refer to Attachment 18 titled USU advice 26_3_20).

[25] Acts Interpretation Act 1901 (Cth), section 36(1).

[26] Witness Statement of Momcilo Romic, at [48].

[27] Witness Statement of Momcilo Romic, at [49].

[28] Witness Statement of Momcilo Romic, at [50].

[29] Witness Statement of Momcilo Romic, at [52].

[30] Witness Statement of Momcilo Romic, at [54].

[31] Witness Statement of Momcilo Romic, at [55].

[32] Witness Statement of Momcilo Romic, at [61].

[33] Witness Statement of Momcilo Romic, at [65].

[34] Witness Statement of Momcilo Romic, at [66].

[35] Witness Statement of Momcilo Romic, at [71].

[36] Witness Statement of Momcilo Romic, at [80].

[37] See also: Damien Matcham v South Coast Medical Service Aboriginal Corporation [2015] FWC 832, at [9].

[38] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, at [21]. See also: Qantas Airways Limited v McRae [2017] FWCFB 4033.

[39] Daisy Younan v Inner West Council [2019] FWC 4777, at [34].

[40] [2010] FWA 6989; decision in the first instance.

[41] [1982] FCA 217; [1982] 45 ALR 411.

[42] [2011] FWAFB 975.

[43] [2011] FWAFB 975, at [13]. See also: Damien Matcham v South Coast Medical Service Aboriginal Corporation [2015] FWC 832, at [10].

[44] [2011] FWAFB 975, at [14]; see also Rose v BMD Constructions Pty Ltd [2011] FWA 673, at [11].

[45] Damien Matcham v South Coast Medical Service Aboriginal Corporation [2015] FWC 832, at [11] (per Commissioner Cargill). See also: Daisy Younan v Inner West Council [2019] FWC 4777, at [35].

[46] [2012] FWA 3167.

[47] [2012] FWA 3167, at [23].

[48] [2011] FWAFB 975, at [14]. See also, Vanessa Jeong v Hands On Computer Training International Pty Ltd (In Liquidation) T/A Australian Institute of Commerce and Technology [2019] FWC 1079, at [16].

[49] Alison Graham v Tronics Pty Ltd [2014] FWC 803, at [18].

[50] [2012] FWA 3167, at [35]..

[51] [2011] FWAFB 975, at [14].

[52] [2012] FWA 3167, at [24] - [35].

[53] [2018] FWCFB 4109, 279 IR 361, [2019] ALMD 413, at [52].

[54] [2012] FWA 3167, at [35].

[55] For example, Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403.

[56] Witness Statement of Momcilo Romic, at [52].

[57] Witness Statement of Momcilo Romic, at [48].

[58] Witness Statement of Momcilo Romic, at [55].

[59] Witness Statement of Momcilo Romic, at [48] to [54].

[60] McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112.

[61] Napier v Thomas Foods International (Murray Bridge Division) [2018] FWC 275, at [31] to [32]. See also: Daisy Younan v Inner West Council [2019] FWC 4777, at [49].

[62] Witness Statement of Momcilo Romic, Attachment 12.

[63] Witness Statement of Momcilo Romic, at [71].

[64] Daisy Younan v Inner West Council [2019] FWC 4777, at [55].

[65] For example, Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403.

[66] Kathleen Bowers v Tony Port; Vivid Home Builders Pty Ltd [2018] FWC 4306, at [44]. See also, Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654, at [13].

[67] [2020] FWC 2837

[68] [2011] FWAFB 2728.

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

[71] [2020] FWC 3031

[72] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78, 83.

[74] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.

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

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