s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] Mr Nathan Hammond (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Avada Traffic Pty Ltd (Respondent).

• [2] The Applicant was a traffic controller employed by the Respondent. On 13 December the Applicant 2024 was working on a client site, was asked by the client to undertake a drug test and declined to do so. The Applicant's employment was terminated on 19 December 2024 with the reasons provided by the Respondent in its termination letter being because:

• the Applicant refused to undertake a drug and alcohol test as requested by the client in breach of the Respondent's 'Fitness for Work - Drug and Alcohol Policy' (Policy); and
• on Monday 16 December 2024 the Applicant failed to attend a scheduled meeting intended to provide him with an opportunity to explain his actions and address the matter.

• [3] The Applicant filed his unfair dismissal application on 12 February 2025 and the Respondent objected to the application on the basis that it was made more than 21 days after the dismissal took effect. The Commission needs to deal with an objection of this nature as a threshold matter before it can deal with the substantive merits of the application.

When must an application for an order granting a remedy be made?

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

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

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

Case management and materials filed by the parties

• [5] On 26 February 2025 the Commission wrote to the Applicant explaining:

1. that the Applicant had claimed he was dismissed on 19 December 2024;
2. that the Applicant had made his application on 12 February 2025;
3. that the Applicant appeared to be 34 days late;
4. that the Commission can only grant an extension of time if there are exceptional circumstances; and
5. that in determining whether there are exceptional circumstances and whether the application for an extension of time should be granted, the Commission must consider the following factors:
   1. the reason for the delay;
   2. whether the person first became aware of the dismissal after it had taken effect;
   3. any action taken by the person to dispute the dismissal;
   4. prejudice to the employer (including prejudice caused by the delay);
   5. the merits of the application (but only briefly to consider whether the claim is without merit); and
   6. fairness as between the person and other persons in a similar position.

• [6] A link to more information on the Commission's website was provided.

• [7] The Applicant sent an email to the Commission on 6 March 2025 setting out his reasons for the delay in which he indicated that his application was made outside the 21 day period because he was unaware that two other employees who declined a mandatory drug test at the same time had not been dismissed and it was only recently that he had seen them working for the Respondent. The Applicant said he did not know he had been treated unfairly until he became aware of this.

• [8] In that email the Applicant also said:

• he was led to believe all employees were treated equally but was not told about a meeting to discuss what had happened and was not given the same opportunity as other employees who keep their employment; and
• after losing his employment with the Respondent his mental health suffered and he had been prescribed medication.

• [9] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

• [10] Directions in relation to the matter were sent to the parties on 7 March 2025 which:

1. required the Applicant to file his submissions and evidence by 14 March 2025; and
2. required the Respondent to file the materials it wished to rely on by 21 March 2025

• [11] A case management conference was held on 12 March 2025 and after taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act) and the directions remained unchanged following the case management conference.

Submissions and evidence filed with the Commission

• [12] The Applicant filed submissions, statements of evidence and other materials with the Commission on 7 March 2025. This included his own statement of evidence and two statements of evidence from his friend, Emma Harris (Harris).

• [13] The Applicant commenced his employment on 17 July 2023 and was a casual Traffic Controller. By way of context the Applicant said on 13 December 2024 he was on site working as a Traffic Controller when:

• he was approached by a van belonging to the client;
• he was casually asked if he would like to get into the van and have a drug test;
• he politely declined the drug test and the van moved on;
• two other employees also declined to be tested;
• all of the Respondent's employees were asked to leave site.

• [14] The Applicant said he was notified of his dismissal when he was called by his supervisor Adrian on the afternoon of 13 December 2024 and was told that he had lost his job after being sent home from site with the two other employees after refusing a drug test by the client they were working for. Ms Harris' statement indicates she was with the Applicant at the time of his conversation with Adrian on 13 December 2024 and:

• the Applicant put his phone on speaker and during this conversation;
• Adrian said that the Applicant "should have just taken the test" and "you have lost your job mate";
• there was no mention of a meeting that the Applicant was to attend;
• the Applicant then received a call from Blake which he declined to take after he had spoken to Adrian advising that he had lost his job.

• [15] The Applicant filed a screenshot dated 13 December to a person called 'Blake' in which the Applicant thanked him for the call, explaining that Adrian had called him and indicating he knew he didn't have a job anymore.

• [16] The Applicant said he was contacted via email by Darren Andrews (Mr Andrews) from the Respondent on 17 December 20224 advising him that he had failed to attend a meeting about his employment with the Respondent. In this regard the Applicant filed a copy of a letter from Mr Andrews dated 16 December 2024 (16 December letter) which, by way of summary:

• stated that it was to formally address the Applicant's absence from the fact-finding meeting scheduled on 16 December 2024 during which he was to provide a response regarding his decision not to comply with the client's request for a drug and alcohol test;
• stated that the Applicant's failure to attend the meeting without prior notice was a serious concern;
• required that the Applicant contact Mr Andrews by no later than 4pm on 19 December 2024 to provide an explanation and stated that if he failed to make contact within that timeframe his employment would be terminated;
• urged the Applicant to engage with a manager to discuss the situation and provide a response.

• [17] While Mr Andrews' statement suggests the letter was sent on 16 December 2024, the email attaching this letter filed by the Applicant appears to have been sent by Mr Andrews to the Applicant at 8.03am on 17 December 2024.

• [18] The Applicant said he was not advised in writing nor via email nor telephone of a meeting on 16 December 2024.

• [19] The Applicant submitted that on 17 December 2024 he responded to Mr Andrews:

• advising him that he did not know about the meeting and explaining his reasons for refusing the test;
• explaining that as the test was being carried out by the client and not the Respondent, he did not know that the test was mandatory and would result in him losing his employment with the Respondent; and
• advising him that he had been prescribed THC oil for anxiety and depression and provided proof of prescription.

• [20] In this regard, the Applicant filed a copy of a letter dated 15 August 2024 (Prescription) from Mohd Shah of Dispensed Pty Ltd indicating:

• it was an authorised prescriber of medicinal cannabis;
• it had assessed the Applicant and approved him for treatment with medical cannabis based on this clinical presentation.

• [21] The Applicant said he spoke to Mr Andrews on 19 December 2024 and was 'officially terminated' on that date. The Applicant said later that day he received a letter, a copy of which was filed with the Commission (Termination Letter). By way of summary, the Termination Letter:

• formally confirmed the termination of the Applicant's employment effective immediately;
• stated that the decision followed the Applicant's:
  • refusal to comply with a client's request for a drug and alcohol test on Friday 13 December 2024; and
  • failure to attend a scheduled meeting on Monday 16 December 2024 to discuss the matter;
• stated that the refusal to undertake the drug and alcohol test requested by the client was a clear breach of the Respondent's Fitness for Work - Drug and Alcohol Policy which:
  • the Applicant was inducted on and signed on 22 August 2024 as part of the Respondent's onboarding process; and
  • which explicitly states that employees must comply with client requests for drug and alcohol testing;
  • jeopardised the Respondent's relationship with a valued client and compromised workplace safety;
• stated that the Applicant's failure to attend the scheduled meeting on 16 December 2024 demonstrated a failure to engage in the process and resolve the issue constructively.

• [22] The Applicant said on 10 February 2025 he witnessed the other two employees from the incident working for the Respondent and also confirmed with a current staff member of the Respondent that they remain employed.

• [23] The Applicant said that on 12 February 2025 he decided that he was unfairly treated as his employment was terminated and the other two employees had remained employed and as such, made his application.

• [24] The Applicant submitted that he did make his application within 21 days after his dismissal took effect because:

• he was unaware he had been treated unfairly because his assumption was that he and the other two employees had all been treated equally and had all been dismissed;
• he recently found out the other two employees remained employed and that he had been treated differently.

• [25] The Applicant submitted that he believed he may have been treated differently because is Aboriginal.

• [26] The Applicant submitted that he believed his dismissal was unfair because:

1. he was advised of the meeting to discuss his employment on 16 December 2024;
2. he was unaware the drug test was mandatory;
3. two other employees refused to do a drug test from the same client and on the same site and were all told to leave together on 13 December 2024;
4. while he lost his employment, the other two traffic controller employees continued employment with the Respondent.

• [27] The Applicant submitted that although late, he believed the Respondent was still able to gather information about his termination and respond to his claim.

• [28] The Respondent sought an extension of time for the filing of its materials and filed its submissions and materials on 24 March 2024 together with statements of evidence in relation to:
  • Elizabeth Alwyn, the Respondent's People and Culture Manager (Ms Alwyn);
  • Darren Andrews, the Respondent's Health, Safety and Quality Manager (Mr Andrews);
  • Adrian Currey, a Supervisor for the Respondent (Mr Currey).

• [29] Mr Currey's statement indicates that:

• he called the Applicant to ask him why he refused to take the drug and alcohol test and that the Applicant responded that he didn't want to;
• he told the Applicant that he'd have to attend a disciplinary meeting but that the Applicant refused;
• he explained to the Applicant that he may face disciplinary action that may result in termination of employment;
• the Applicant 'flipped out' and hung up the phone;
• he reported this to Jason and asked for him and Blake to reach out to the Applicant;
• the Applicant continued to refuse to go to a disciplinary meeting.

• [30] In her statement Ms Alwyn said that the Applicant failed to comply with a mandatory drug and alcohol test on 13 December 2024 on a client site and was advised by his supervisor that as a result he was suspended upon investigation. In his statement Mr Andrews said the drug and alcohol tester at the client's site provided a statement of events. In this regard the Respondent filed a copy pf an email from Bryce Dick of TDDA to Jason Hristovski of the Respondent, copying in James Stanbridge, the person identified in that email as the person who did the testing and dealt with the Respondent's workers. The email then purports to provide a recollection of Mr Stanbridge's events and indicates, by way of summary that:

• on 13 December 2024 Mr Stanbridge did a total of eight urine drug and alcohol tests and at the end of this process was asked to test two traffic controllers, one of whom refused a test and the other who said he was not prepared to do a urine test but would only do a swab test;
• he explained that the test would need to be a urine test but the worker refused;
• he told both workers that they would need to go back and tell the Downer supervisor, Tim, that they were refusing to do the test;
• neither worker got into the van.

• [31] Ms Alwyn said the Applicant was sent a notice to attend an investigation meeting on 16 December 2024. The Respondent filed a copy of a letter that is dated 13 December 2024 with the subject 'Re: Invitation to Meeting to discuss Refusal to Undertake Drug and Alcohol Test'. Mr Andrews said this notice was sent to the Applicant's home email address and that address appears in the letter. I note however that a copy of the actual email sent to the Applicant attaching this letter does not appear to have been filed with the Commission.

• [32] The Applicant did not attend the meeting on 16 December 2024. Mr Andrews said on 17 December 2024 the Applicant emailed him stating he was not aware of the meeting on 16 December 2024 and attached a prescription for cannabis oil, with this email being sent from the same email address that the fact-finding letter was emailed to.

• he had not been made aware of the Applicant's personal medical condition and prescription prior to email from the Applicant on 17 December 2024;
• on 18 December 2024 he called the Applicant to discuss the reason he refused to take the drug and alcohol test;
• he contacted Dispensed Pty Ltd to confirm the authenticity of the medicinal cannabis letter and prescribed date;
• he emailed the Applicant the Termination Letter on 19 December 2024 to the same email address provided on record.

• [34] The Respondent submitted the Applicant did not take any steps to dispute the dismissal (prior to making his application).

• [35] In relation to the merits of the application, the Respondent submitted:

• there was a valid reason for the dismissal based on the Applicant's conduct, being that the Applicant refused to comply with a mandatory drug and alcohol test which was a clear and enforceable requirement at the client's site and constituted a breach of the Respondent's Fitness for Work Policy, the client's safety requirements and industry regulations for safety-sensitive roles;
• the Applicant was notified of the reason for the dismissal, having been explicitly informed that his refusal to comply with the mandatory drug and alcohol test was a breach of company policy and the matter was being investigated;
• the Applicant was given an opportunity to respond, having been scheduled for a disciplinary meeting on 16 December 2024 to provide an explanation regarding his refusal to take the drug and alcohol test;
• the Applicant was not unreasonably denied access to a support person;
• the Applicant was aware of the consequences of his actions as the Respondent's Traffic Fitness for Work Policy clearly states that employees must comply with drug and alcohol testing and that refusal to do so may result in disciplinary action, including termination of employment. Ms Alwyn's evidence was that the Applicant signed and acknowledged the policy on 22 August 2024. A record of this was filed with the Commission.

• the Applicant's Offer Letter dated 13 July 2023 which records the Applicant's agreement to 'comply with the Employer' policies and procedures, as amended from time to time at the sole discretion of the Employer' and states that 'failure to comply with the Employer's policies may result in disciplinary action, up to and including dismissal';
• the Applicant's Transfer of Employment letter dated 16 July 2024 which states:

'8.1 The Employer's policies exist for the effective and safe operation of its business and for the welfare and interest of those who work for it. Throughout your employment with the Employer, you shall abide by and comply with all of the Employer's policies and procedures relating to your employment as implemented and amended from time to time.

8.2 Your obligation to comply with the Employer's policies and procedures is a term of your employment. Any failure to comply with the Employer's policies and procedures, as amended from time to time, may result in disciplinary action up to and including termination of your employment';

• its Traffic Drug and Alcohol Policy which:
  • sets out an employee responsibility to 'participate in a Drug Test and/or BAC Test, when required';
  • states that 'Staff members may be subject to random Drug tests and BAC Tests by [the Respondent] and/or its client's while at a Workplace'
  • states that a 'Staff member who refuses to participate in a Drug Test or BAC Test or fails to attend a designated test location at the required time, will be deemed to have failed the Drug Test or BAC Test' and that 'Such a person will be stood down for the remainder of the workday and may be subject to disciplinary action, including suspension or termination of employment/engagement';
  • states that disciplinary action for a breach of the policy will depend on the circumstances but may involve a warning, transfer, counselling, demotion or dismissal.

• [37] At 9.46am, immediately prior to the commencement of the conference on 7 April 2025, the Commission resent the parties a Microsoft Teams link for the conference along with instructions to share the link with their witnesses who would be giving evidence. The conference commenced at 10am however the Applicant was not in attendance. At that time the Commission sent an email to the Applicant asking him to join as soon as possible using the Microsoft Teams link. The Applicant then emailed the Commission at 10.01am and stated in that email "I will not be joining, I am not well and struggling thanks". At 10.31am the Commission sent the Applicant an email seeking reasons and evidence for non-attendance by 4pm on 9 April 2025. The Applicant did not respond to this email. On 10 April 2025 the Commission sent a follow up email chasing a response from the Applicant and advised the Applicant in that email that if he did not respond by 15 April 2025 the Commission would determine the application on the material before it. The Applicant did not respond to the email, the Respondent did not make an application pursuant to s.399A of the Act. As such, I have proceeded to determine the matter based on the material before the Commission, given the Applicant's non-attendance at the Conference and failure to respond to the Commission's follow up emails or otherwise engage with the Commission since that time.

• [38] It is not in dispute, and I so find, that the dismissal took effect on 19 December 2024.

• [39] It is not in dispute, and I so find, that the application was made on 12 February 2025.

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

• [40] It is not in contention and I find that the dismissal took effect on 19 December 2024. As I found above, the application was made on 12 February 2025, which is more than 21 days after the dismissal took effect.

• [41] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

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

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

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

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

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

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

• [43] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [44] I set out my consideration of each matter below.

• [45] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 January 2025. The delay is the period commencing immediately after that time until 12 February 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [46] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]

• [47] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]

• [48] The Applicant submitted that the delay was for the following reason[s]:

• the Applicant is an Aboriginal man with limited knowledge of systems and processes;

• • the Applicant was dismissed because he refused a drug test and failed to attend a meeting to discuss the incident and since his dismissal has become aware that two other employees who refused a drug test at the same time were not dismissed and was unaware that he had been treated differently.[5]

• [49] In particular the Applicant's statement evidence indicates that:

• on 10 February 2025 he witnessed the two other employees who refused a drug test working for the Respondent;
• he confirmed with a current employee of the Respondent that the two employees are still employed by the Respondent; and
• on 12 February 2025 he decided he had been treated unfairly as he had been dismissed and the other two employees had not.

• [50] The Applicant did not attend the conference and it is unclear as to whether there were one or two other employees who refused a drug test. Notwithstanding this having regard to the above, I find that the reason for the delay was because the Applicant formed a belief, on 10 February 2025, that two of his colleagues who had also refused a drug test had not been dismissed and it was not until 12 February 2025 that he formed a view that his dismissal was unfair.

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

• [51] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

• [52] The Applicant submitted that he took action to dispute the dismissal because he emailed Mr Andrews on 17 December 2025:

• advising him that he had been prescribed THC oil for anxiety and depression;
• providing proof of his prescription; and

• • explaining that as the drug test was being carried out by a client and not the Respondent, he did not know the test was mandatory and would result in the termination of his employment.[6]

• [53] The Respondent submitted that the Applicant did not take any steps to dispute the dismissal.

• [54] While the Applicant emailed Mr Andrews on 17 December 2025 prior to his dismissal, he was not ultimately dismissed until 19 December 2025 and after this date the Applicant did not take any action to dispute his dismissal prior to making the application on 12 February 2025.

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

• [55] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

• [56] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [57] The Applicant gave evidence that on 17 December 2024 he received an email from Mr Andrews advising him that he had not attended a meeting on 16 December 2024 about his employment and the incident on 13 December 2024 but that he was not advised about this meeting.

• [58] In particular, the Applicant submits his dismissal was unfair because:

• he was unaware the drug test was mandatory;
• he was not advised of that there would be a meeting to discuss his employment on 16 December 2024;

• • two other employees refused a drug test and while the Applicant was dismissed, the two other employees were not.[7]

• [59] The Respondent submits the Applicant's dismissal was fair because:

• its Fitness for Work Policy (Policy) clearly states that:
  • employees must comply with drug and alcohol testing;
  • refusal to comply may result in disciplinary action including termination;
  • the Applicant signed and acknowledged the Policy on 22 August 2024;
• the Applicant refused to comply with a mandatory drug and alcohol test, this was a clear and enforceable requirement at the client's site, this constituted a serious breach of the Policy, the client's safety requirements and industry regulations for safety-sensitive roles and this constituted a valid reason for the dismissal based on the Applicant's conduct;
• the Applicant was notified of the reason for his dismissal;
• the Applicant was given an opportunity to respond as a disciplinary meeting was scheduled for 16 December 2024 and the Applicant was given written notice of the meeting and provided with the opportunity to have a support person present;
• the Applicant was not unreasonably denied access to a support person.

• [60] It is not in contention that the Applicant refused a drug test and this appears to be in breach of the Respondent's Policy and Applicant's contractual requirement to comply with the Policy. However the Termination Letter points to another reason that the Applicant may have been dismissed, including failure to attend a meeting on 16 December 2024. There is contested evidence concerning whether the Applicant was notified of that meeting. Further, the Applicant has raised issues concerning the fairness of his treatment relative to other employees.

• [61] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[8] and the same applies to s.394(3)(e).

• [62] Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

• [63] While the Applicant raises the issue of unfairness concerning his treatment relative to two other employees who he says retained their jobs after refusing a drug test, as a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[9]

• [64] Neither party brought to my attention any relevant matters currently before the Commission or others previously decided by the Commission. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

• [65] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reason for the delay, being that the Applicant formed a view that his treatment was unfair after learning of the continued employment of two employees who he understood had also refused to undertake a drug and alcohol test;

(b) the Applicant being aware of the dismissal at the time that it took effect;

(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application (aside from his representations to the Respondent via email on 17 December 202);

(d) the absence of any prejudice to the employer;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [66] 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.[10] 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.[11]

• [67] I accept that the Applicant learned about the continued employment of certain colleagues and that it was not until then that he formed the view he had been unfairly dismissed. However, it is common that parties in unfair dismissal cases may not have all of the facts on hand at the time of making their decision to file an application and there is no evidence that the Applicant was prevented from seeking to confirm the employment status of these employees earlier, if he was concerned that their continued employment would be the factor that made his dismissal unfair. The fact that he may have made an incorrect assumption does not amount to an exceptional circumstance. Parties can also take measures during the conduct of their case to establish certain facts during the course of their proceedings if an application is filed. Further, the continued employment of the employees of concern to the Applicant does not necessarily make his claim meritorious. The circumstances surrounding each of these individual employees is unknown.

• [68] I am not satisfied that the above matters considered individually point towards there being any exceptional circumstances. Further, I am not satisfied that there are exceptional circumstances after having regard to all of the matters at s.394(3) of the FW Act and considering the above matters collectively.

• [69] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.

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

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

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

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

[5] Form F2 Application, response to q. 1.4, Applicant's Submissions, response to q.4.

[6] Applicant's Submissions, response to q. 5.

[7] Applicant's Submissions, response to q. 7 and 8.

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[9] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

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

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