s.394 - Unfair dismissal

Application for an unfair dismissal remedy - applicant did not serve the minimum employment period - application filed 36 days out of time - circumstances not exceptional - extension not granted - application dismissed.

• [1] On 18 March 2025, Mr Muhammad Riaz made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), by lodging a Form F2 - Unfair dismissal application (Form F2). While the respondent named in the Form F2 was Mirvac Property Developer, subsequent confirmation was received in the Form F3 - Employer response to unfair dismissal application (Form F3) that the correct legal name for the respondent was Mirvac Projects Pty Ltd. Accordingly, pursuant to s.586 of the Act, I determined to correct the name of the respondent to Mr Riaz's application for an unfair dismissal remedy so that it is recorded as being Mirvac Projects Pty Ltd (Respondent).

• [2] At the determinative conference on 6 May 2025, Mr Riaz appeared and gave evidence, as did Ms Sonia Mu, the Respondent's National HR Manager, and Ms Maia Fadida, the Respondent's Property & Community Manager. The Respondent did not persuade me that it should be granted permission to be represented by a lawyer.

• [3] The Form F2 outlined that Mr Riaz was notified of his dismissal on 20 January 2025 but that the dismissal took effect on 6 March 2025 whereas in the Form F3, the Respondent asserted that Mr Riaz was notified of his dismissal and that the dismissal took effect on 20 January 2025. The Respondent also outlined an objection to Mr Riaz's application on the basis that his employment did not meet the minimum employment period required for him to be a person protected from unfair dismissal (s.382(a) of the Act). In this regard, the Respondent disclosed in the Form F3 that it was not a small business employer, having outlined that it had 1,647 employees when Mr Riaz was given notice of his dismissal.

• [4] A Contract of Employment signed by Mr Riaz on 26 July 2024 discloses that Mr Riaz's starting date with the Respondent as a full-time employee was 9 August 2024 and that he was to be employed on a probationary basis for the first 6 months of his employment. The Contract of Employment entitled the Respondent to terminate Mr Riaz's employment during the probationary employment with immediate effect with 2 weeks' pay in lieu of notice. It also outlined that Mr Riaz was to report to Ms Fadida.

• [5] At the determinative conference, Mr Riaz asserted that his employment with the Respondent commenced when he was engaged as a casual employee on 29 July 2024 for the purposes of attending orientation. This engagement also took in each of 30 July 2024, 31 July 2024 and 1 August 2024. Mr Riaz confirmed that he was not engaged as an employee of the Respondent during the period 2 -8 August 2024 (inclusive).

• [6] It is not in dispute and I am satisfied Mr Riaz was handed a letter dated 20 January 2025 during a meeting he had with Ms Fadida and Ms Cate Staford (the Respondent's National Property and Community Manager) on 20 January 2025, which was headed Notice of termination of employment within probation (Termination letter) and advised:

"Mirvac has decided to terminate your employment within probation on the basis of its assessment that you do not quite have the skills Mirvac requires for the position of Loading Dock Supervisor. In accordance with the notice provisions provided for in your contract of employment dated 25 July 2024, this letter confirms that your employment with Mirvac is terminated within probation effective from 20 January 2025.

Your contract of employment provides for the termination of your employment within probation with 2 weeks' notice. Mirvac does not require that you work this notice period. Instead, payment in lieu of notice will be made. In addition, you are entitled to payment of accrued but not taken annual leave.

As you have already received your January pay you have been paid for the period from 1 January 2025 to 31 January 2025. Therefore a portion of your 2 weeks' notice will be deducted from January overpayment (21 January 2025 to 31 January 2025).

You are reminded that you continue to owe certain obligations to Mirvac under your employment contract and at law even after your employment with Mirvac ceases. These obligations include your undertakings in clause 16 of your employment contract and your continuing obligation to protect the secrecy of Mirvac's confidential information.

Before leaving the office today, please return to Mirvac all property of Mirvac which are in your possession including but not limited to all documents, records, Confidential Information (in whatever format and however stored, including all copies), keys, access pass, security access codes to Mirvac's systems, mobile phone, iPad, computer, computer software and programs.

We wish you success in your future endeavors (sic)."

• [7] Mr Riaz responded to the Termination letter by sending an email to the Respondent on 22 January 2025, in which he outlined, inter alia:

"I am writing to formally raise concerns regarding Miss Maia Fadida's behavior (sic) and the circumstances surrounding my recent termination as a Loading Dock Supervisor. During my time in the role, I encountered significant issues that affected my ability to perform effectively and contributed to a toxic workplace environment.

On the 20th of January, I was terminated during my probation period without due process or explanation. Below, I outline key concerns regarding her conduct and the events leading to my termination:

I believe her management style is detrimental to both employees and the overall workplace culture. I urge senior management and HR to review her approach and take appropriate action to ensure the LIV Aston workplace is managed in a way that promotes collaboration, respect, and fairness.

1. Investigate the circumstances surrounding my termination.

2. Review Miss Fadida's conduct and managerial approach.

3. Implement measures to prevent similar issues from recurring.

1. She has made daily meetings at 12 pm mandatory, seemingly for the sole purpose of asserting her authority rather than achieving any meaningful objectives.
2. I am more than willing to address and counter any response she provides regarding these matters. I am also open to discussing this issue in any setting deemed appropriate. Her behavior (sic), in my view, reflects a lack of professionalism and stability." She is a Psycho.

1. While I considered leaving negative feedback or a review regarding my experience at LIV Aston, I felt it was more important to address my concerns directly with the team. Everyone must be made aware of the challenges I faced under her management, as I believe it is important to highlight areas for improvement in leadership and workplace culture. If her behavior (sic) continues, it will likely result in the loss of talented individuals, and her decisions could potentially lead to significant financial costs for LIV Aston in the future.

Thank you for your attention to these matters. I look forward to your response to switch the Bitch..."

• [8] In this correspondence, Mr Riaz called upon the Respondent to review the management performance of Ms Fadida, whom he described as a "bitch", and to "switch" her. However, Mr Riaz made no explicit request for the reconsideration of his dismissal.

• [9] Ms Mu responded with an email sent on 23 January 2025, which stated:

I am writing in relation to the email below which has been passed on to me.

I note that your email makes a number of allegations regarding the termination of your role and workplace culture at LIV Aston.

In your email you have also made a number of offensive comments regarding your former manager which Mirvac considers highly inappropriate.

The aspects of your feedback that are appropriate will be considered by Mirvac as part of our usual offboarding processes."

• [10] Ms Mu and the Respondent contended that this correspondence did not suggest that the Respondent was going to reconsider the decision to terminate Mr Riaz's employment, whereas Mr Riaz asserted that having received this correspondence, he believed that the Respondent was going to review the circumstances of his dismissal.

• [11] I accept that Mr Riaz formed such a belief because on 29 January 2025, correspondence passed between Mr Riaz and Ms Ellen Tai, HR Business Partner for the Respondent regarding an overpayment said to have been made to Mr Riaz, in which Mr Riaz outlined "There is still an investigation going on on my unfair dismissal. I would wait for that." Further, when Mr Riaz and Ms Tai corresponded again on 21 February 2025, Mr Riaz wrote "My case of unfair dismissal is still under investigation. As Manager had no authority to dismissed me from job. You can approach with General manager of HR who has assigned my case to Sonia."

• [12] I also note that on 15 February 2025, Mr Riaz sent an email to Mr Benjamin Morris, Group General Manager - Human Resources for the Respondent, stating:

I hope you're doing well. I am reaching out to inquire whether I would be eligible to apply for any other roles within the company.

My contract was recently terminated during the probation period, and I strongly believe this decision was unfair and not performance-related. It appears to have been influenced by the manager's conduct, as she created a difficult work environment and dismissed me without valid justification. Despite raising concerns through my employee survey and requesting HR involvement, my contract was terminated without due process, and I understand an investigation is still ongoing.

Given these circumstances, I would appreciate your guidance on whether I can apply for other roles within the company. If I were to submit an application, how would it be considered?

I would be grateful for any insights you can provide. Please let me know if you require any additional information.

• [13] Mr Morris responded by email on 25 February 2025 by advising that Mr Riaz could apply for Mirvac roles that had been advertised and that his application would go through the standard Mirvac recruitment processes. Mr Morris' email otherwise wished Mr Riaz well with his future endeavours. At the determinative conference, Mr Riaz described his attempts to apply for advertised positions with the Respondent via its website and claimed that upon engaging with the online application process, he found that he was still being regarded as an internal candidate by the Respondent's software.

• [14] On 5 March 2025, Ms Mu sent an email to Mr Riaz outlining the following:

"I have made a number of internal enquiries into the matters raised in your email on 22 January 2025 and confirm that:

1. Your employment at Mirvac was not terminated without due process or explanation. The correct Mirvac processes were followed on all occasions by your manager, Maia Fadida.

2. Specifically, you were provided a number of opportunities in meetings to respond to concerns raised by Maia about your performance and behaviour and these concerns were confirmed to you in writing, which also stated that a failure to improve could result in your employment being terminated in probation.

3. Additionally, Maia has not fostered a hostile work environment at LIV Aston or otherwise acted inappropriately towards you or other team members in relation to any of the matters raised in your email.

Given these findings, Mirvac considers this matter to be closed and will not be engaging further with you on these matters.

We wish you all the best in your future endeavours."

• [15] Mr Riaz responded by email on 6 March 2025, stating:

"Thank you for your response. However, I strongly disagree with your conclusion, as my termination was both unfair and procedurally flawed.

I have not been provided with any evidence supporting the investigation's findings. On the day of my termination, there was no due process - no proper discussion, explanation, or adherence to protocols. I was simply handed a termination letter without being given a fair opportunity to respond beforehand. Asking if I had any questions after the decision was already made was redundant, as the damage had already been done.

Furthermore, I was called in for a performance review solely because I had expressed disagreement on certain points. There was no prior warning or explanation before my termination, which was clearly retaliatory. I had also offered to cooperate with the investigation and provide any necessary clarification, yet it appears that my input was disregarded in favor of protecting the decision-maker.

It is disappointing to see a lack of fairness and transparency in this process. Nonetheless, I appreciate your opinion on the matter.

Since you continue to validate this decision without providing any substantial proof of the investigation's findings, I will be filing a case with Fair Work Australia. I trust that, if necessary, you will be able to justify your findings before them."

• [16] At the determinative conference, Mr Riaz submitted that it was not until 5 March 2025 that he concluded that the Respondent had confirmed his termination and was not going to revisit it, and that having formed this view, considered that when he filed the Form F2 on 18 March 2025, he was within the required 21-day period.

• [17] I am satisfied, for the purposes of determining whether Mr Riaz completed a period of employment with the Respondent of at least the minimum employment period, that the Respondent was not a small business employer and the minimum employment period in this case was 6 months. Section 383(a) of the Act provides that the 6-month minimum employment period ends at the earlier of the time when a person is given notice of the dismissal and immediately before the dismissal.

• [18] A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[1] In this case, I am satisfied Mr Riaz was notified that he had been dismissed with immediate effect on 20 January 2025 and that he knew that was the case. The Termination letter was written in unambiguous terms and makes clear that Mr Riaz's employment was terminated with immediate effect, particularly as it referred to Mr Riaz receiving pay in lieu of notice, requested the return of the Respondent's property before he left the office that day and wished him success in his future endeavours. When Mr Riaz wrote to the Respondent on 22 January 2025, he referenced having been terminated during his probation period.

• [19] I am also satisfied that Mr Riaz had not completed 6 months of employment with the Respondent when he was notified of his dismissal on 20 January 2025 because Mr Riaz commenced full time employment on 9 August 2024. Even if the 4 days of Mr Riaz's casual employment with the Respondent from 29 July 2024 - Thursday 1 August 2024 were to be included in the calculation of his period of employment, the 7-day period between these 4 days as a casual employee and his commencement as a full-time employee is not.

• [20] I do not consider there is any basis for including the period after 20 January 2025 until 5 March 2025 as part of Mr Riaz's continuous service. Even if there was a finding that the Respondent was reviewing whether to give effect to Mr Riaz's dismissal during the period between 23 January 2025 and 5 March 2025, there was at no time a retraction of the notification of the dismissal previously given by the Respondent on 20 January 2025. Further, Mr Riaz was neither directed, nor required to work during this period and nor was it a period of paid leave required to be counted towards his continuous service.

Conclusion- Minimum Employment Period Objection

• [21] As I am satisfied that Mr Riaz had not completed a period of employment of at least 6 months when he was notified of his dismissal on 20 January 2025, I am not satisfied he was a person protected from unfair dismissal. The consequence of this finding is that Mr Riaz is not eligible to bring an unfair dismissal application and his application must be dismissed.

Was the application made within the period required in s.394(2) of the Act?

• [22] I can discern no basis for determining either that there is a "proper order" for determining the various objections upon which the validity of an unfair dismissal application depends, or that the "proper approach" is to find whether an unfair dismissal application is made within the required 21-day period provided for in s.394(2)(a) of the Act, or allow a further period (s.394(2)(b)), before an objection based on the minimum employment period ground is dealt with.[2] I consider that the circumstances of a particular case will best inform the approach the Commission should take. In this case, it was apparent that Mr Riaz was given notice of his dismissal on 20 January 2025 and the commencement date of his employment with the Respondent was also discernible. As such, the question of whether Mr Riaz had served the minimum employment period required for him to be a person protected from unfair dismissal was able to be determined.

• [23] Nonetheless, I will deal with the question of whether the unfair dismissal application of Mr Riaz was made within the required 21-day period provided for in s.394(2)(a) of the Act and if not, whether the Commission should allow a further period (s.394(2)(b)). For the reasons outlined in [18] above, I am satisfied Mr Riaz was dismissed with immediate effect on 20 January 2025, that he was notified of this and that he knew it to be the case.

• [24] The consequence of this finding is that the period of 21 days for Mr Riaz to make an application for an unfair dismissal remedy ended at midnight on 10 February 2025. The application for an unfair dismissal remedy made by Mr Riaz was therefore filed 36 days outside of the 21-day period provided for in s.394(2)(a) of the Act, with the result that Mr Riaz would requires the Commission to allow him an extension of time (s.394(2)(b)) in order to further prosecute his case.

• [25] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances". Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[4]

• [26] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

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

• [27] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [28] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all the circumstances must be considered.[5]

• [29] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 10 February 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 36-day delay, or any part of that delay, beyond the 21-day period.[6]

• [30] I accept that Mr Riaz chose to interpret the 23 January 2025 email as conveying a commitment from the Respondent that his dismissal would be reviewed but I consider he was entirely misconceived. Having twice described his former manager as a "bitch" in his 22 January 2025 email and been advised by Ms Mu that the Respondent considered he had made a number of highly inappropriate, offensive comments about Ms Fadida, I do not consider Mr Riaz's purported belief that his dismissal was going to be reviewed was, in an objective sense, reasonable. The commitment made by the Respondent was confined to reviewing those aspects of Mr Riaz's feedback it considered appropriate, as part of its "usual offboarding processes."

• [31] However, even if one was to put Mr Riaz's evidence regarding his contact with the Respondent, and his assertion that there remained a real possibility that the Respondent might reverse its decision and offer him reinstatement at its highest, I am not persuaded these factors offer an acceptable or reasonable explanation for the delay. This is because the Respondent, in my view, gave no indication that it would reverse the dismissal decision and consider reinstating Mr Riaz. While one might opine that the 23 January 2025 email sent by Ms Mu could perhaps have been more explicit, I am not persuaded that it can reasonably be read as outlining a commitment from the Respondent to review the termination decision it had made.

• [32] Further, I am not persuaded by Mr Riaz's contentions that the status of his dismissal was questionable or confusing because Ms Fadida had no authority to terminate his employment and that this provides an acceptable or reasonable explanation for the delay. Ms Fadida was Mr Riaz's line manager. Mr Riaz knew this, and I accept Ms Fadida's evidence, corroborated by Ms Mu,[7] that she had authority to make the decision to terminate Mr Riaz's employment and that Ms Stafford had approved this decision.[8]

• [33] Although I am not persuaded that Mr Riaz's beliefs in relation to either the possibility of the termination decision being reviewed or the validity of his dismissal by Ms Fadida provide an acceptable or reasonable explanation for the delay, even if I was, I do not consider that they provide a credible explanation for the entirety of the 36-day delay. When the email sent by Ms Mu on 5 March 2025 is taken into account, a further 13 days passed before Mr Riaz filed his unfair dismissal application with the Commission.

• [34] As to this part of the delay, Mr Riaz said he could not focus, he was not feeling well and his two infant children were ill. As to these matters, while Mr Riaz may have experienced some stress and a negative reaction as a result of his dismissal, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. In any event, I am not persuaded Mr Riaz's reaction to his dismissal rendered him so debilitated and unfocussed that he could take no steps during the 13-day period that followed the receipt of Ms Mu's email on 5 March 2025. Mr Riaz corresponded with the Respondent on 6 March 2025 and he had also previously pursued a number of matters with the Respondent during the period after 20 January 2025. Finally, in the absence of particulars and/or medical certificates and reports, Mr Riaz has not persuaded me that there were issues with his infant children that were so serious and time consuming as to account for the 13-day period after 5 March 2025 until his unfair dismissal application was filed.

• [35] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 36-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 36-day delay in this case. In the alternative, I do not consider there was an acceptable or reasonable explanation for the 13-day delay that persisted between the receipt of the email from Ms Mu on 5 March 2025 and the filing of the unfair dismissal application on 18 March 2025.

• [36] The absence of acceptable or reasonable explanations weighs against granting an extension of time.

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

• [37] Ultimately, I am satisfied that Mr Riaz became aware of his dismissal with immediate effect when it occurred on 20 January 2025. Mr Riaz therefore had the full period of 21 days to lodge his unfair dismissal application. This consideration is a neutral consideration.

Action taken to dispute the dismissal - s.394(3(c)

1. Action taken by an employee to dispute a dismissal, other than lodging an unfair dismissal application, may weigh in favour of granting an extension of time.[9] I am satisfied that after being notified of his dismissal, Mr Riaz disputed it when sending emails to the Respondent on 22 January 2025, 15 February 2025 and 6 March 2025. As Mr Riaz took some action to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances.

• [39] The Respondent acknowledges that it has not suffered any prejudice as a result of the delay. Mr Riaz did not specifically address this consideration but the essence of his position overall is that there is no prejudice to the Respondent. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.

• [40] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, one of the matters the Commission must decide before considering the merits of the application is whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)).

• [41] The material before me clearly indicates that there is significant factual dispute when it comes to the circumstances preceding Mr Riaz's dismissal. As such, I am not able to form a concluded view about the merits of the application. Mr Riaz raises various matters in prosecuting the unfairness of his dismissal. The Respondent has raised performance and behavioural issues going to its contention that there was a valid reason for Mr Riaz's dismissal. It also asserts Mr Riaz was notified of these performance and behavioural issues on multiple occasions prior to his dismissal, including in a formal meeting one month in advance of his dismissal. The Respondent also outlined that Mr Riaz was advised that a failure to improve might result in him not successfully completing his probationary period and submits that he was therefore provided with sufficient time in which to demonstrate improvement.

• [42] I consider the evidence would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.

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

• [43] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. The Respondent did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. Mr Riaz largely raised matters that were directed at the merits of his case but also said other employees who had been on probation had been forced to resign or had been dismissed. In this case, this consideration is a neutral consideration.

Conclusion on the question of an Extension of time

• [44] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [45] The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, aptly outlined:

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."[10]

• [46] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, I am not persuaded there is a basis for me to allow an extension of time.

• [47] I have determined that Mr Riaz had not completed a period of employment of at least 6 months when he was notified of his dismissal on 20 January 2025. The consequence of this finding is that Mr Riaz is not eligible to bring an unfair dismissal application.

• [48] In the alternative, I decline to grant an extension of time under s.394(3) of the Act.

• [49] Accordingly, Mr Riaz's unfair dismissal application is dismissed.

[1] Ayub v NSW Trains [2016] FWCFB 5500.

[2] Lisha Herc v Hays Recruitment (Australia) Pty Ltd [2022] FWCFB 234 at [10] and [17].

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[7] Exhibit R1, Witness Statement of Sonia Mu at paragraph 8, Digital Court Book (DCB) at page 61.

[8] Exhibit R2, Witness Statement of Maia Fadida at paragraph 12, DCB at page 65.

1. [9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[10] [2018] FWCFB 901.

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