Time limits for unfair dismissal

 

Here is a decision of a senior member of the Fair Work Commission refusing to extend the statutory time of 21 days for the filing of an application for an unfair dismissal remedy, together with authorities referred to.

Mas v Margaret River Busselton Tourism Association – [2021] FWC 2531 – 30 July 2021 – Binet DP

“Application for an unfair dismissal remedy.

[1] On 29 April 2019, Mr Peter Mas (Mr Mas) filed an application (U2019/4825) (2019 Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Margaret River Busselton Tourism Association on 1 April 2019 (Tourism Association).

[2] On 29 May 2019 the Tourism Association filed a Form 3 – Employer Response to Unfair Dismissal Application raising a jurisdictional objection that the 2019 Application was filed out of time.

[3] An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances. The 2019 Application was lodged 28 days after Mr Mas’ dismissal took effect.

[4] On 5 June 2019, the 2019 Application was listed for a conciliation conference with a staff conciliator (Conference). The 2019 Application was discontinued by Mr Mas. 1

[5] On 25 June 2019, Mr Mas contacted the staff conciliator who conducted the 5 June 2019 Conference to request a copy of the transcript from the Conference. The staff conciliator informed Mr Mas that no transcript was made because the Conference was not recorded.

[6] On 26 June 2019, Mr Mas sought to have the 2019 Application re-opened.

[7] On 3 July 2019, the FWC informed Mr Mas in writing that in light of his discontinuance of the 2019 Application he would need to apply to a court to have his discontinuance set aside in order to proceed with the 2019 Application. Alternatively, or he could file a new application.

[8] In the same correspondence, Mr Mas was informed that for any new application to proceed he would need to apply for an extension of time to file the application.

[9] Notwithstanding that Mr Mas had been specifically alerted to the strict time limit for filing such applications, he did nothing further in relation to his alleged unfair dismissal until 21 October 2020.

[10] On 21 October 2020, Mr Mas filed a new application in relation to his alleged dismissal on 1 April 2019 (2020 Application). The 2020 Application was lodged 569 days after Mr Mas dismissal took effect.

[11] The 2020 Application form was incomplete in that page 2 with the respondent’s details and the answers to questions 3.1 and 3.2 were not provided.

[12] On 22 October 2020 the FWC called Mr Mas to request the details missing from his application form.

[13] On 10 November 2020 Ms Diana Mas (Ms Mas), the mother and support person of Mr Mas, informed the FWC that her son wanted to pursue the 2020 Application. The FWC advised Ms Mas that if Mr Mas wished to proceed with the 2020 Application, he would need to urgently provide the information missing from his application form. Ms Mas indicated that she would post this information to the FWC. The FWC’s Perth GPO Box address was provided to her and she was told that she should express post the documents to the FWC.

[14] The relevant information was not provided to the FWC. Notwithstanding this on 26 November 2020, Commissioner Bissett ordered that the 2020 Application could proceed without the requested information because the information had been made available to the FWC and the Tourism Association by way of the 2019 Application. 2

[15] Relevantly to later events Commissioner Bissett noted in her decision that: 3

“[11] In having reached this decision Mr Mas should be aware of the need to comply with any directions issued by the Commission in relation to his application. A failure to do so may result in his application being dismissed.”

[16] The 2020 Application was allocated to my Chambers to determine whether Mr Mas should be granted an extension of time to file the 2020 Application (Out of Time Application).

[17] On 8 December 2020, I issued directions to the parties (Directions). The Directions stipulated that in order to proceed with the 2020 Application, Mr Mas needed to ensure that he filed the materials set out in the Directions no later than 4pm, Thursday 17 December 2020. To assist Mr Mas in preparing his materials, the Directions were accompanied by templates and links to relevant material on the FWC website.

[18] Paragraph [8] of the Directions warned that if Mr Mas did not comply with the Directions, the Tourism Association could apply to have the 2020 Application dismissed pursuant to section 399A of the FW Act.

[19] On 8 December 2020, my chambers received a phone call from Mrs Mas who indicated that Mr Mas was confused about what he was required to do. Chambers referred Ms Mas to the Directions and the links and templates that were provided with the Directions.

[20] On 16 December 2020 Mr Mas sent an email to chambers asking for an extension of time to file his materials. On 17 December 2020 Mr Mas was informed that he had been granted and extension of time until 10am, 21 December 2020 to file his materials. Chambers reminded Mr Mas that if the materials were not filed within this further time period, the Tourism Association may make an application to dismiss the 2020 Application pursuant to section 399A of the FW Act.

[21] On 21 December 2020, Ms Mas called my chambers and indicated that the materials, which were due to be filed no later than 10am on 21 December 2020, had only that morning been posted to the FWC at a Post Office in the South West of Western Australia.

[22] On 22 December 2020, the materials from Mr Mas were delivered to the FWC by Australia Post. On 24 December 2020, my chambers provided a copy of those materials to the Tourism Association and invited them to respond to the materials.

[23] On 7 January 2021, the Tourism Association’s made an application pursuant to section 399A of the FW Act for the 2020 Application to be dismissed (First Dismissal Application). In the First Dismissal Application, the Tourism Association submitted that the FWC should dismiss the 2020 Application should be dismissed on the grounds that the Mr Mas’s materials:

  1. were not filed within the timeframes within which Mr Mas had been directed to file his materials; and
  2. did not comply with the Directions because the materials filed addressed the merit of the 2020 Application rather than the application for an extension of time to file the 2020 Application.

[24] On 8 January 2021, Mr Mas was invited to make submissions providing reasons why the FWC should not dismiss the 2020 Application, accompanied by any evidence or other documentary material supporting those reasons by no later than 4pm, 14 January 2021.

[25] On 14 January 2021, Mr Mas filed his materials in relation to the First Dismissal Application.

[26] On 21 January 2021, the Tourism Association filed a response to those materials.

[27] On 3 February 2021, the parties were notified that the 2020 Application would be listed for a conciliation conference at 4pm, 8 February 2021.

[28] On 8 February 2021, a conference was held at which the parties agreed to terms of settlement (Conference). The parties specifically agreed that they would be bound by the verbal resolution reached at the Conference and that those terms would be documented in a fuller or precise manner in a written document. The verbal terms of settlement were reduced to writing by the representatives of the Tourism Association’s based on a template frequently used in the FWC. A copy of the terms of settlement were provided to Mr Mas on 9 February 2021 (Settlement Agreement). The Settlement Agreement included a statement of service as an annexure.

[29] On 15 March 2021, Mr Mas informed chambers that he wished to amend the Settlement Agreement and its annexed statement of service. Mr Mas’ changes included a large increase to the settlement sum and substantial amendments to the statement of service to include subjective assessments of his performance rather than objective details of his employment history with the Tourism Association.

[30] On 16 March 2021, Tourism Association advised that they did not agree to increase the Settlement Sum, however they would be prepared to convert the statement of service to a reference letter if Mr Mas otherwise complied with the terms of the agreement reached at the Conference.

[31] On 30 March 2021, the Tourism Association paid Mr Mas the settlement sum agreed at the Conference.

[32] On the same day, the Tourism Association filed with chambers, and served on Mr Mas, an application for the 2020 Application to be dismissed pursuant to sections 399A and 587 of the FW Act (Second Dismissal Application). The Tourism Association submitted that the 2020 Application should be dismissed on the grounds that Mr Mas had failed to discontinue the application after a verbal settlement agreement had been reached at the Conference.

[33] On 1 April 2021, Mr Mas was invited to file submissions and evidence as to why the 2020 Application should not be dismissed.

[34] On 16 April 2021, Mr Mas filed his materials with the FWC.

[35] On 27 May 2021, a further bundle of materials was received by chambers from Mr Mas. The materials appeared to relate to the merits of the 2020 Application. The Tourism Association were provided with a copy of the materials and invited to respond by 10 June 2021.

[36] The Tourism Association provided a response to the materials on 10 June 2021.

[37] On 11 June 2021, the parties were advised that I proposed to determine the Dismissal Applications and the Out of Time Application on the papers without a formal hearing unless the parties wished to be heard orally. Both parties agreed that they were content for the applications to be determined ‘on the papers.’

Consideration

[38] The Tourism Association have made two applications pursuant to section 399A and one application pursuant to section 587 of the FW Act for the 2020 Application to be dismissed.

[39] Section 399A of the FW Act provides that:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[40] Section 587 of the FW Act provides:

587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[41] In the First Dismissal Application, the Tourism Association sought that the 2020 Application be dismissed on the grounds that Mr Mas had failed to comply with a direction of the FWC in relation to an application because he did not file materials in form or in substance in accordance with the Directions issued on 8 December 2020 or within the time frame of the extension granted to him.

[42] In response to the First Dismissal Application, Mr Mas submitted that the materials were mailed prior to the deadline and that therefore he had not failed to comply with a direction of the FWC relating to an application.

[43] The Directions issued on 8 December 2020 required that Mr Mas file in the FWC and serve on the Tourism Association an outline of submissions which addressed each of the following:

  1. the effective date of dismissal;
  2. the reason(s) for the delay;
  3. whether he first became aware of the dismissal after it had taken effect;
  4. any action he took to dispute the dismissal;
  5. if there is any prejudice to the employer (including prejudice caused by the delay);
  6. the merits of the application; and
  7. fairness as between him and any other persons in a similar position.

[44] The Directions also required that Mr Mas file in the FWC and serve on the Tourism Association:

  1. signed and dated witness statement for any witness to be called in relation to the question of whether to grant the extension of time;
  2. a copy of any authorities on which he relies in relation to the question of whether to grant the extension of time;
  3. a copy of any document upon which he relies in relation to the question of whether to grant the extension of time.

[45] The materials required to be filed by the Directions were initially due to be filed in the FWC and served on the Tourism Association by 4pm on 17 December 2020 however Mr Mas was granted an extension until 10am on 21 December 2020 to file and serve his materials.

[46] The materials Mr Mas was directed to file were received by the FWC on 22 December 2020. The materials filed did not address the criteria for granting an extension of time for the 2020 Application as was required by the Directions. Rather, the materials filed relate predominantly to the merits of the 2020 Application. The materials did not include any signed and dated witness statements from Mr Mas or any other witness.

[47] Mrs Mas informed chambers that she posted Mr Mas’ materials to the FWC at 9am on 21 December 2020 in the South West of Western Australia. The materials could not have therefore been received by the FWC before the 10am deadline.

[48] Materials are filed in the FWC when they are received by the FWC.

[49] It was made clear to Mr Mas on multiple occasions he must file his materials in strict compliance with the Directions.

[50] Mr Mas had been granted an extension to file his materials. He therefore had the benefit of additional time to prepare his materials and was aware of the process to seek an extension if that was necessary and appropriate.

[51] It is clear from other correspondence with the FWC in relation to the 2020 Application that Mr Mas has an email account and that he can send and receive materials from that account.

[52] There is no evidence that any of the materials were served on the Tourism Association in accordance with the Directions.

[53] I am satisfied that Mr Mas failed to comply with a direction of the FWC relating to the 2020 Application when he failed to file the materials set out in the Directions in accordance with the direction to do so by 10am on 21 December 2021.

[54] In the Second Dismissal Application, the Tourism Association submitted that the 2020 Application should be dismissed pursuant to sections 399A(1)(c), 587(b) and 587(c) of the FW Act on the grounds that Mr Mas had failed to discontinue the application after a verbal settlement agreement had been reached at the Conference held on 8 February 2021.

[55] The Tourism Association say that the parties agreed to engage in settlement discussions, agreed to settle on a global basis, agreed the terms of the Agreement, agreed to be bound by those terms and agreed to execute a written agreement. The Tourism Association submit that on the authority of Master v Cameron (1954) 91 CLR 353 a binding settlement had been reached and that Mr Mas has acted unreasonably in failing to discontinue the 2021 Application.

[56] In the alternative the Tourism Association submit that the 2020 Application is frivolous or vexatious within the meaning of section 587(b) of the FW Act and has no reasonable prospects of success within the meaning of section 587(c) of the FW Act because agreement was reached at the Conference, the agreement is a valid and complete satisfaction of the original claim and the Tourism Association has completed performance of the terms of the settlement agreement.

[57] Mr Mas submits that an application may only be dismissed pursuant to section 399A(1)(c) where an executed settlement agreement has been reached between the parties and the settlement sum has been paid.

[58] Mr Mas concedes that he agreed in principle to settle the 2020 Application however he says that one of the agreed terms was that the agreement would only be binding once the verbal agreement had been put into writing and signed by both parties.

[59] Mr Mas says that he refused to sign the written terms of settlement because the written terms of settlement provide:

  1. that he will be provided with a statement of service rather than a reference;
  2. that his separation will be described in the statement of service as a resignation rather than a dismissal; and
  3. for a lower settlement sum, that on reflection, he believes is appropriate.

[60] Mr Mas concedes that the settlement sum agreed at the Conference was deposited in his account on 30 March 2021 however he says that this occurred after he indicated that he did not intend to sign the terms of settlement and therefore cannot satisfy section 399A(1) of the FW Act because the payment was made before the written terms of settlement had been executed.

[61] Mr Mas further submits that he should not be bound by the verbal agreement because he was unrepresented at the conference, is unemployed, cannot afford a lawyer and was not fully aware of the consequences of the proceedings.

[62] Both sections 399A and 587 allow the FWC to dismiss an application in circumstances in which the parties have reached a binding agreement settling a claim. 4

[63] However, the power of the FWC to dismiss an application should be used sparingly and approached with caution.5

[64] Where parties have been negotiating and reach an agreement upon terms of a contractual nature and also agree that the agreed terms will be dealt with in a written contract there are four possible scenarios: 6

  1. The parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms but at the same time propose to have those terms restated in a form that will be fuller or more precise but not different in effect.
  2. The parties have completely agreed all the terms of their bargain and intend no departure or addition to that which their agreed terms express or imply but nevertheless have made the performance of one or more of those terms conditional upon the execution of a formal document.
  3. The intention of the parties is not to make a concluded bargain at all unless and until they execute a formal contract.
  4. The parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing by concept additional terms.

[65] When parties do reach an agreement of the first or fourth category, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 7

[66] Mr Mas is a mature gentleman. Mr Mas filed detailed submissions on 16 April 2021 which referenced legal principles and attached evidentiary materials. The submissions are written in the ‘first person’ and are signed by Mr Mas. They demonstrate an awareness of legal principles and coherently set our Mr Mas’s case. Mr Mas was confident and comfortable to attend the Conference alone without a support person. At the Conference he clearly, calmly and firmly articulated his case and the terms upon which he would agree to resolve the 2020 Application. He appeared to be of sane mind and competent to conclude an agreement about the resolution of his claim.

[67] The difference between a statement of service and a reference was explained to Mr Mas at the Conference.

[68] The evidence of the Respondent was that at the Conference the parties reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms but at the same time proposed to have those terms restated in a form that will be fuller or more precise but not different in effect accords with my recollections of the outcome of the Conference.

[69] I am satisfied that the Settlement Agreement accurately reflects the terms of settlement agreed by the parties at the Conference.

[70] Mr Mas on his own admission has on subsequent reflection decided that he would prefer a larger settlement sum than what he agreed to at the Conference and a reference rather than a statement of service. The Tourism Association indicated that they would be prepared to amend the terms of settlement and offer him a statement of service however they refused to renegotiate the Settlement Sum. Their refusal to increase the Settlement Sum from the amount agreed at the Conference appears to be the reason why Mr Mas has declined to discontinue the Application, not because of any lack of agreement at the Conference or any confusion as to what was agreed at the Conference.

[71] I am satisfied that a settlement agreement was concluded at the Conference and that Mr Mas has failed to discontinue the Application. I would therefore dismiss the 2020 Application pursuant to section 399A(1)(c).

[72] Even if a settlement agreement had not been concluded at the Conference, based on the submissions and evidence before me, I would not have granted Mr Mas an extension of time to file the 2020 Application for the reasons which follow.

[73] Subsection 394(2) of the FW Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the FWC allows pursuant to subsection 394(3) of the FW Act. The FWC may only allow a further period for lodgement in exceptional circumstances. The 2020 Application was lodged 569 days after Mr Mas’ dismissal took effect.

[74] 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.8 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.9

[75] Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:

  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; and
  6. fairness as between the person and other persons in a similar position.

[76] 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.

[77] The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.10

[78] Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.11

[79] The onus is on Mr Mas to provide a credible reason for the delay.

[80] While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances.12

[81] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,13 the Full Bench explained the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[82] 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 of the circumstances must be considered.14

[83] The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation. Ignorance of the 21day timeframe is not, of itself, an exceptional circumstance.15

[84] Mr Mas provided the following explanation for the delay in filing the 2019 Application:

“… the reason for the delay was the mental anguish he was put through because of the unfair dismissal. Events happened quickly, he felt persecuted and hurt by what happened; he was also stressed with other personal issues – going through a tough divorce battle, that his whole life was falling apart. He was in denial and could not believe that he was unlawfully dismissed; he lost track of time and was truly lost on what to do, until everything sank in and applicant was given advice by family and friends to seek justice. Six (6) days later, applicant filed for unlawful dismissal.”

[85] It is common for employees to suffer shock and trauma as a result of dismissal from employment. 16 There is no medical evidence before me to suggest that Mr Mas was medically incapacitated from filing in time. There is no evidence before me as to when Mr Mas’ divorce proceedings occurred in relation to his dismissal in order to determine whether the combination of events might provide an explanation for the delay and might properly be characterised as exceptional.

[86] Mr Mas has provided no explanation for the delay between the 5 June 2019 conference and 25 June 2019 when he sought the transcript for the conference.

[87] He says that the delay between 25 June 2019 and 26 June 2019 when he sought to have the conference reopened was a result of him waiting for the staff conciliator to advise him whether transcript was available.

[88] Between 26 June 2019 and 3 July 2019, a delay arose while the Panel Head considered his request to reopen the 2019 Application.

[89] On 3 July 2019, Mr Mas was informed in writing by the FWC that, in light of his discontinuance of the 2019 Application, he would need to apply to a court to have his discontinuance set aside in order to proceed with the 2019 Application or he could file a new application. He was also informed that for any new application to proceed he would need to apply for an extension of time to file the application.

[90] Notwithstanding that Mr Mas had been specifically alerted to the strict time limit for filing such applications, Mr Mas did nothing further in relation to his alleged unfair dismissal until 21 October 2020 when he filed the 2020 Application. He has provided no explanation for this delay.

[91] I consider the evidence before me provides a reasonable explanation for some but not all of the delay.

[92] The absence of an acceptable explanation for all of the delay weighs against a conclusion that there are exceptional circumstances.

[93] Mr Mas was advised of his dismissal on the day on which it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against Mr Mas being granted an extension.17

[94] Action taken by an applicant to contest the termination, other than by virtue of making the application, will be relevant and may weigh in favour of granting the extension of time.18

[95] Mr Mas did not take action to dispute the dismissal other than to file the 2019 and 2020 Applications. He pursued no action at all to dispute the dismissal between 3 July and 21 October 2020. This circumstance weighs against the conclusion that there are exceptional circumstances.

[96] Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.19

[97] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.

[98] A long delay gives rise “to a general presumption of prejudice”.20

[99] Having participated in the staff conference and being informed that the 2019 Application had been discontinued the Tourism Association was entitled to presume that the matter had been resolved and not preserve any relevant evidence. I am satisfied that a prejudice arose when the Tourism Association later discovered that Mr Mas wished to proceed with his application.

[100] Even if the Tourism Association did not suffer any prejudice, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.

[101] If a claim has merits, this will weigh in favour of the grant of an extension of time.21

[102] In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice.22

[103] Given the limited materials before me, it is not possible to make any firm or detailed assessment of the merits at this stage. As I am unable to determine whether the merits of the present case tell for or against an extension of time. I therefore consider the merits to be a neutral consideration.

[104] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of this kind; however, cases of this kind quite often turn on their own facts.23

[105] Neither party brought to my attention any relevant matter concerning this consideration, and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration.

[106] Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Mr Mas, I am not satisfied that there are 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, there is no basis for me to allow an extension of time. I decline to grant an extension of time under section 394(3) of the FW Act.

[107] For the reasons set out in this Decision the 2020 Application for an unfair dismissal remedy is dismissed.

[108] An Order 24 to this effect will be issued with this Decision.”

1   Peter Mas v Margaret River Busselton Tourism Association [2020] FWC 6356 at [3]

2   PR724904.

3   Peter Mas v Margaret River Busselton Tourism Association [2020] FWC 6356

4   Tomas v Symbion Health at [59]

5 Resta v Myer Pty Ltd [2013] FWC 7080

6   Curtin v Darwin Council (2012) 224 IR 174, Master v Cameron (1954) 91 CLR 353, Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622

7   oiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432,

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

9 Ibid.

10 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [16].

11 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].

12 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].

13 [2016] FWCFB 349.

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

15 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].

16   Rose v BMD Constructions Pty Ltd [2011] FWA 673

17 Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd [2016] FWC 1291 at [15].

18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

19 Ibid.

20 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

21 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

22 Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].

23 Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

24   PR729299