1
Fair Work Act 2009
s.604 - Appeal of decisions
Thiess Services Pty Ltd
v
M Stephens
(C2014/2889)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2014
Appeal against decision [[2014 FWC 330] and order PR546774] of Commissioner Johns in
matter number U2013/9909—leave to appeal granted—appeal upheld—decision and order
quashed—decline to allow Respondent further period to make unfair dismissal application—
unfair dismissal remedy application is dismissed.
[1] This is an appeal by Thiess Services Pty Ltd (the Appellant) against a decision1 and
order2 of Commissioner Johns of 13 January 2014 in relation to an application3 made under
s.394 of the Fair Work Act 2009 (the Act). Commissioner Johns extended the time for the
making of the application under s.394(2)(b) of the Act.
[2] The s.394 application was made by Mr M Stephens (the Respondent) in relation to the
termination of his employment by the Appellant on 21 February 2013 on the basis of conduct
said to constitute serious misconduct. The Respondent made an application by telephone on
15 May 2013, which was regularised by the filing of a signed and dated application in the Fair
Work Commission (the Commission) on 25 September 2013.
[3] At the time of the Respondent’s termination, applications under s.394 of the Act were
required to be filed within 21 days of the date the dismissal took effect or within such further
period as the Commission may allow. The 21 day period ended on 14 March 2013.
Accordingly, the Respondent’s unfair dismissal application was filed 62 days out of time by
reference to the application by telephone or 195 days out of time by reference to the filing of
the signed and dated application of 25 September 2013.
Background
[4] The employment of the Respondent was terminated by the Appellant by letter of
21 February 2013 on the grounds of serious misconduct, arising from a telephone call the
Appellant was satisfied had been made by the Respondent.4
[5] At some time in March 2013, the Respondent asked the Appellant’s People and
Capability Manager, Asset and Infrastructure Services—Mr D van den Berg—whether he
[2014] FWCFB 2426
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 2426
2
could submit any further evidence in relation to his dismissal to the Appellant if he could find
any. Mr van den Berg informed the Respondent that new evidence would be considered.5
[6] On or about 26 March 2013, the Respondent provided a copy of a report prepared by
Dr P Rose6—a forensic voice comparison—to the Appellant.
[7] In a letter from the Services Operations Manager dated 24 April 2013, the Appellant
confirmed the receipt of the report and the Respondent’s request that his employment be
reinstated but advised him that the original decision to terminate the employment on
21 February 2013 “stood”.7
[8] On 14 May 2013, the Respondent completed and signed a complaint to the Victorian
Equal Opportunity & Human Rights Commission (VEOHRC),8 on the basis that he was
dismissed while on WorkCover and discriminated during his employment.9 The application
was marked as received on 17 May 2013 by VEOHRC.10 VEOHRC proceeded with
conciliation on 9 August 2013 and the termination of the complaint by the VEOHRC delegate
occurred on 27 August 2103.11
[9] On 15 May 2013, the Respondent made his s.394 application by telephone to the
Commission and payment was made on that day,12 although payment was not processed until
28 May 2013.13
[10] On 28 May 2013, the Commission wrote to the Respondent, referring to the 15 May
2013 telephone application, enclosing a copy of the telephone application and seeking that it
be fully completed, signed and returned to the Commission within 14 days of the initial
application.14
[11] On 27 June 2013, a member of the Commission’s staff spoke to the Respondent about
the incomplete application. The file note records that the Respondent advised that he did not
receive the 28 May 2013 letter and still wished to proceed with his application.15 A further
letter in the same terms as the 28 May 2013 letter was sent to the Respondent on that day.16
[12] Further letters in the same terms were sent by the Commission to the Respondent on
17 July 201317 and 29 July 2013. 18
[13] On 19 September 2013, a staff member of the Commission spoke to the Respondent,
advising him of the letters sent. The Respondent advised that he had not received them. The
staff member advised that a further letter would be sent and the Respondent “had until
Tuesday” (24 September 2013) to respond.19 The letter was sent on the 19 September 2013.20
[14] On 25 September 2013 the Commission received the completed and signed
application.
[15] The hearing before Commissioner Johns commenced on 22 November 2013. The
evidence of the Respondent raised questions as to the timing and fact of interactions between
himself and Commission staff. In light of the information contained on the Commission’s
database, relevant to those interactions, but not made available to the Appellant before the
hearing on 22 November 2013, the Commission adjourned the hearing to allow the Appellant
an opportunity to consider its position in respect of its objection to the extension of time. The
matter was relisted for hearing on 12 December 2013.
[2014] FWCFB 2426
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The relevant statutory provision
[16] When considering whether to exercise his discretion to extend time for filing the s.394
application, Commissioner Johns was required to take into account the factors contained in
s.394 of the Act. That section is in these terms:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order
under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a
person under subsection (1) if FWA is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had
taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the
delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar
position.”
The decision of Commissioner Johns
[17] Commissioner Johns commenced his consideration by noting that “there were 216
days between when the termination of the Applicant’s employment took effect and when a
proper application was filed with the Commission”.21
[18] We note that there is a question as to whether the application was made with the
telephone application and payment on 15 May 2013 or upon lodgement of the completed and
signed application on 25 September 2013. In either case, the application was made
significantly beyond the last day on which it could be made in accordance with s.394(2)(a) of
the Act—14 March 2013—and required an extension of time by the Commission in
accordance with s.394(2)(b) and s.394(3) of the Act.
[2014] FWCFB 2426
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[19] Given s.395 of the Act requires that an application to the Commission under Division
5 of Part 3–2 must be accompanied by any fee prescribed by the Fair Work Regulations 2009
(Regulations) (unless waived as provided for by the Regulations) an application that is not
accompanied by the fee as prescribed by the Act is not made in accordance with the Act.22
[20] The requirements for the completion and signing of a s.394 application arise from the
Fair Work Commission Rules 2013 (the Rules), relevantly in relation to Approved forms
(Rule 8) and Telephone applications (Rule 9), which includes in Rule 9(4) a requirement to
return a completed and signed application form within 14 days. Rule 6 provides that the
Commission may dispense with compliance with any provision of those Rules, either before
or after the occasion for compliance arises.
[21] In Mr Greg Chalker v Melbourne Bus Link,23 Commissioner Jones rejected the
Respondent’s contention that the word “application” in s.394(2) of the Act is a reference to an
application which is completed in all relevant respects:
“. . . construing s.394 of the Act so as to require a completed application within 14 days
would not facilitate informality and flexibility and would operate unfairly as against
applicants. I, therefore reject the Respondent’s submissions as to the construction of
s.394(2).”24
[22] Payment (or waiver) is required for an application under s.394 to be made, by virtue of
s.395 of the Act. It is not necessary for an application to be complete and signed for an
application to be made, given that requirement arises from the Rules, the requirements of
which may be dispensed with under Rule 6.
[23] The Respondent’s application was made late, whether made on 15 May 2013 or on
25 September 2013. It is not necessary for us to consider dispensation with the requirements
of Rule 9 in the circumstances of this matter, given our decision in the appeal.
[24] We return to the decision of Commission Johns. As required by the Act,
Commissioner Johns had regard to each of the statutory considerations in s.394(3) of the Act,
made findings in relation to each of them and balanced those considerations, being satisfied
that there “were exceptional circumstances warranting the Applicant being allowed a further
period for his application to be made” (s.394(3) of the Act).25
[25] In relation to s.394(3)(a)—The reason for the delay, the Commissioner found that the
delay was caused by a number of reasons.26
[26] In relation to the first reason, the Commissioner found that in the circumstances it was
reasonable for the Respondent to form the view that he was being afforded an opportunity to
appeal if he could present new evidence and it would be unfair to penalise the Respondent for
his incorrect assumption as to an appeal process as this was an unusual circumstance.
[27] In relation to the second reason for delay, the Commissioner found that there was a
delay in obtaining additional information—the report from Dr Rose—directed to the appeal
process, which was not the fault of the Respondent.
[2014] FWCFB 2426
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[28] In relation to the third reason for delay, the Commissioner found that there was a delay
in the Appellant considering the report from Dr Rose, which was not the fault of the
Respondent.
[29] In relation to the fourth reason for delay, the Commissioner found that the Respondent
made a telephone application to the Commission for an unfair dismissal remedy within
21 days of being advised that the decision to terminate his employment “stood”. The
Commissioner also found that the telephone application was incomplete and that there was a
delay in regularising the application. After reviewing the communications between the
Commission and the Respondent directed to fully completing the application,
the Commissioner found that it would be unfair to attribute that delay to the Respondent. The
Commissioner found that the administrative delay was out of the ordinary course of the
Commission’s usually efficient processes and to that extent it was an exceptional
circumstance.
[30] Apart from the consideration of the delay between 15 May 2013 and 25 September
2013 relating to completing and signing the telephone application, each of the reasons for
delay considered by the Commissioner concerned the period between the termination and the
24 April 2013 advice to the Respondent by the Appellant confirming the decision to terminate
the employment on 21 February 2013.
[31] In relation to the other matters in s.394(3) of the Act, Commissioner Johns found:
1. the Respondent first became aware of the dismissal on 21 February 201327
(s.394(3)(b)), but went on to find that the Respondent was “mistaken in a
belief that what he considered to be an internal appeals process impacted upon
the finality of the decision. However, having regard to what Mr van den Berg
said to the Applicant about the preparedness of the Respondent to consider any
new information this is a special case and it constitutes an exceptional
circumstance”;28
2. the Respondent took action to dispute the dismissal in several ways, a
consideration weighing in favour of granting him a further period to make his
application29 (s.394(3)(c) of the Act);
3. The Appellant suffered prejudice through the opportunity lost to obtain
forensic evidence and in bearing the cost of defending itself for the second
time weighed against granting the Respondent “a further period to make his
application”30 (s.394(3)(d) of the Act);
4. the Respondent’s case was not one that was “without merit or lacking in any
substance”, weighing in favour of granting him a further period to make his
application31 (s.394(3)(d) of the Act); and
5. the parties agreed that fairness as between the person and other persons in a
similar position was not relevant in the circumstances of the matter before
Commissioner Johns32 (s.394(3)(e) of the Act).
[2014] FWCFB 2426
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[32] Balancing each of those considerations, Commissioner Johns was “satisfied that there
are exceptional circumstances warranting the Applicant being allowed a further period for his
application to be made”33 (s.394(3) of the Act).
Consideration
[33] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied
that it is in the public interest to do so.34 In GlaxoSmithKline Australia Pty Ltd v Colin Makin
a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters . . .” 35
[34] If the error of the decision maker relied upon by an appellant is an error of fact, then
the Full Bench must be satisfied it is a “significant error of fact”.36 It is not enough that the
Full Bench would have arrived at a different conclusion to that of the original decision maker;
the relevant question is whether the finding made by the decision maker was reasonably open
to him or her.
[35] The Appellant raised numerous grounds of appeal against the decision of
Commissioner Johns. Amongst them, in ground 10, the Appellant submitted that the
Commissioner erred in finding that the Respondent’s subjective belief that he had the benefit
of an appeal process, after the termination, constituted an exceptional circumstance justifying
the 83 day period between the termination on 21 February 2013 and telephone application of
15 May 2013. The Appellant submitted that the decision of the Commissioner, in this respect,
was inconsistent with previous authority in El Arja v Rail Corporation New South Wales (El
Arja).37
[36] We think that this appeal ground has substance.
[37] An applicant needs to provide a credible reason for the whole of the period that the
application was delayed.38 The Commissioner was required to consider the explanation of the
total delay not only part of it. The delay, for the purposes of s.394(3) of the Act, is the delay
from the expiry of 21 day period in s.394(2)(a) after the termination date until lodgement of
the application.
[38] It was open to the Commissioner to find that the Respondent’s mistaken belief as to an
appeal right, post termination, provided a reasonable explanation for the delay in lodging an
application until the Appellant advised the Respondent on 24 April 2013 that the decision to
terminate his employment “stood”. However, there was no basis for the Commissioner to find
that the belief constituted a reasonable explanation for the delay in lodging the application
between 24 April 2013 (or very shortly thereafter) and 15 May 2013, a period of a further 21
days. In this regard, we note that the Commissioner’s consideration of the multiple reasons for
the explanation of the delay does not address the explanation, or lack thereof, of the reason for
that further delay beyond 24 April 2013 until 15 May 2013. The Commissioner limited
himself to a consideration of the explanation for the delay until 24 April 2013 and the
[2014] FWCFB 2426
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Appellant’s consideration of additional materials, and the explanation for the delay beyond
15 May 2013. In doing so, Commissioner Johns has misapplied s.394(3)(a) of the Act and
failed to direct his mind to a relevant consideration—the delay between 24 April 2013 and
15 May 2013.
[39] We also note that the Commissioner seems to have taken the view that the Respondent
had a further 21 days in which to make his application after being appraised of the fact that
his termination stood, on 24 April 2013.39 This misconstrues the delay to be considered under
s.394(3)(a) of the Act, which is the delay in lodgement beyond the 21 day period in
s.394(2)(a) from the termination time, rather than the delay arising from the application of the
21 day period for lodgement from the expiry of an earlier period of delay which is adequately
explained. A delay which is adequately explained does not restart the 21 day clock. Any
further delay requires explanation.
[40] Similar circumstances arose in a matter determined by Commissioner Larkin in
El Arja.40 In that matter, the applicant had available to him a right of appeal in relation to his
termination under the State Owned Corporations Regulation 2003 (NSW). The applicant
lodged such an appeal on 7 October 2008, approximately two weeks after his termination of
employment. He was advised that his appeal had failed on 8 December 2008, but did not
lodge his s.394 application at that time.
[41] Commissioner Larkin found:
“[17] By the 8 December 2008 the applicant, if he had lodged his application with
the Commission at that time, would have been approximately seven (7) weeks outside
the time limit in which to lodge his substantive application. If the applicant had lodged
on 8 December 2008 or the following day I may have been persuaded that the
applicant had an acceptable explanation for the delay, given the reference to appeals to
the TAB in RailCorp’s disciplinary outcome letter to him dated 23 September 2008 . . .
I may possibly have accepted this situation as an acceptable explanation if that period
was the only delay, however, it was not.
[18] The applicant lodged his application for relief in the Commission on 8 January
2009, which was approximately four (4) weeks after the TAB’s verbal decision and
almost three (3) weeks after its written decision to dismiss the applicant’s appeal
against his dismissal.”
[42] Commissioner Larkin then dealt with and rejected an explanation for the delay based
on representative error, and concluded that she was “not persuaded that an acceptable
explanation for the whole of the delay in lodging the application . . . had been made out”.41
[43] The decision of Commissioner Larkin was upheld on appeal in El Arja.42 The Full
Bench described:
the question before Commissioner Larkin as “whether there had been a reasonable
explanation for the delay in lodging between 15 October 2008 and 8 January
2009”;43
[2014] FWCFB 2426
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endorsed the submission of the Respondent in the appeal that the “21 day period
ran from the date of the termination of employment—24 September 2008, not from
8 December [2008], nor from 19 December [2008]”;44 and
found that, but for a representative error argument introduced on appeal but not put
to Commissioner Larkin, it “would have been inclined to conclude that no
acceptable explanation had been advanced for the 20 day delay after the TAB’s
reasons were provided”.45
[44] That Full Bench ultimately upheld the decision of Commission Larkin,
notwithstanding the new representative error argument.46
[45] Commissioner Johns’ satisfaction that there were exceptional circumstances in relation
to the period 24 April 2013 to 15 May 2013 in the absence of any explanation of that delay is
inconsistent with the statute which requires lodgement within 21 days from termination unless
there are exceptional circumstances. Further, it is disharmonious with decided authority. We
find that Commissioner Johns failed to have regard to the delay between 24 April 2013 until
15 May 2013 and the absence of any explanation for the failure of the Respondent to make his
application during that period. By failing to have regard to the explanation for the whole of
the period that the application was delayed the Commissioner has not had regard to a material
consideration and misapplied the law in assessing the reason for the delay.
[46] The Commissioner erred in reaching satisfaction as to the existence of exceptional
circumstances necessary for the exercise of the discretion to extend time under s.394(3) of the
Act. It is an error which engages the public interest.
[47] In those circumstances, we grant leave to appeal, uphold the appeal and quash the
decision and order of Commissioner Johns. We will determine the Respondent’s application
to extend the period for the making of his application.
Rehearing
[48] In rehearing the matter, it is necessary to have regard to each of the statutory
considerations in s.394(3) of the Act, make findings in relation to each of them and balance
those considerations in order to determine whether there were exceptional circumstances
warranting the Respondent being allowed a further period for his application to be made
(s.394(3) of the Act).
[49] As observed in paragraphs [18]—[23] of this decision, a question arises as to whether
the application was made with the telephone application and payment on 15 May 2013 or
upon lodgement of the completed and signed application on 25 September 2013. Without
deciding the issue, we proceed in rehearing the matter on the basis that the Respondent’s
application was made upon the application and payment by telephone on 15 May 2013.
The reason for the delay
[50] In this case the relevant delay is the period of 62 days between 14 March 2013—
which is 21 days after the termination on 21 February 2013—and the application by telephone
on 15 May 2013.
[2014] FWCFB 2426
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[51] The Respondent explained the delay until 24 April 2013, on the basis that he believed
that the Appellant was reconsidering the termination in an appeal process, the result of which
was not advised to him until 14 March 2013. There was no explanation provided of the
further delay of 21 days from 24 April 2013 until 15 May 2013 when the application was
made.
[52] An employee needs to provide a credible reason for the whole of the period that the
application was delayed. Even if it is accepted that the delay associated with the “appeal
process” is reasonably explained, in the absence of an explanation of the further delay in
lodgement beyond 24 April 2013, there is no explanation for the delay.
[53] We find that, in the absence of any explanation for the delay in lodgement over the
period 24 April to 15 May 2013, which is a substantial delay in itself, there is no reason for
the delay. This consideration weighs heavily against the Respondent being allowed a further
period for his application to be made (s.394(3) of the Act).
[54] In circumstances where an employee’s employment has been terminated but a
reconsideration is sought or available under a formal internal appeal process, and the
employee may wish to avail themselves of the opportunity to apply for relief in respect of
unfair termination under s.394(3) of the Act, the safest course would be to meet the default
position of applying within 21 days of the termination. Such action would protect their rights
to challenge the termination, in the event that the reconsideration does not alter the decision to
terminate the employment. Even if the particular circumstances surrounding the
reconsideration constituted exceptional circumstances explaining a delay in lodgement until
the outcome of the reconsideration was known, an application should be made immediately
upon the outcome of the reconsideration being advised to the employee, unless there were
exceptional circumstances for further delay, including an explanation for any further delay
beyond that point. Even in those circumstances, the safest course would be to meet the default
position of applying within 21 days of the termination.
Whether the person first became aware of the dismissal after it had taken effect
[55] The Appellant’s 21 February 2013 letter to the Respondent47 makes it clear that the
Respondent was aware that his employment had been terminated at that time. Even if it is
accepted that the Respondent believed that the termination was subject to review by the
Appellant until 24 April 2013, he was aware of the dismissal from the time it had taken effect
and was in a position to make his application from 21 February 2013. In any case, the
Respondent was disabused of any belief that the termination would set aside from 24 April
2013. This consideration provides no support for a finding that there were exceptional
circumstances warranting the Respondent being allowed a further period for his application to
be made (s.394(3) of the Act).
Action taken by the person to dispute the dismissal
[56] The evidence establishes that the Respondent did take action to dispute the
termination. He requested of Mr van den Berg an opportunity to provide further information
to the Appellant to refute the basis of his termination and commissioned research to that end.
The Respondent’s actions were direct and specific and had the effect of alerting the Appellant
to the fact that the Respondent disputed the termination and the basis for doing so. Against
that, the evidence of Mr van der Berg48 is that in March 2013 the Respondent indicated that he
[2014] FWCFB 2426
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was aware of his right to make an unfair termination application but did not want to “go down
that path”. As a result, the Respondent’s application, when it became known to the Appellant,
would not have been anticipated. Nonetheless, the Respondent’s actions to dispute the
termination lends some support to the Respondent being allowed a further period for his
application to be made. (s.394(3) of the Act).
Prejudice to the employer (including prejudice caused by the delay)
[57] We accept the submission of the Appellant that the delay prejudices the employer
beyond the normal prejudice of having to defend an application. The extensive period of time
since the termination prejudices the ability of the Appellant to obtain telephone records
relevant to the incident relied upon to terminate the employment. The delay has resulted in the
Appellant having to defend the VEOHRC application, without recourse to argument
concerning multiple applications. This consideration counts against affording the Respondent
a further period for his application to be made. (s.394(3) of the Act).
The merits of the application
[58] In circumstances where there is competing evidence as to the incident relied upon to
terminate the employment, which would need to be tested in arbitration, it cannot be
concluded that the Respondent’s application is without merit. This consideration lends limited
support to the Respondent being allowed a further period for his application to be made
(s.394(3) of the Act).
Fairness as between the person and other persons in a similar position
[59] The parties agree that this consideration is not relevant in the circumstances of the
present matter.49
Conclusion on Rehearing
[60] This consideration counts against a finding that there are exceptional circumstances
warranting the Respondent being allowed a further period for his application to be made
(s.394(3) of the Act).
[61] Having regard to and balancing our findings in respect of the matters in ss.394(3)(a)—
(f) of the Act, we are not satisfied that there are exceptional circumstances warranting the
Respondent being allowed a further period for his application to be made (s.394(3) of the
Act). The Respondent’s reasons for the delay in making his unfair dismissal application
cannot be regarded as unusual or extraordinary in circumstances where he advanced no reason
for his failure to lodge the unfair dismissal application in the Commission between 24 April
2013 and 15 May 2013. Nothing in our findings in respect of the matters in ss.394(3)(a)—(f)
constitute exceptional circumstances.
[2014] FWCFB 2426
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Final conclusion
[62] Accordingly, we quash Commissioner Johns’ decision50 and order51 of 13 January
2014 and decline to allow the Respondent the necessary further period to make his unfair
dismissal application. His unfair dismissal application is dismissed. An order52 giving effect to
our decision will be issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
M Stephens on his own behalf.
N Harrington of Counsel for the Appellant.
Hearing details:
2014.
Melbourne:
March 14.
Printed by authority of the Commonwealth Government Printer
Price code C, PR549569
1 [2014] FWC 330.
2 PR546774.
3 Matter number U2013/9909 before Commissioner Johns.
4 Appeal Book at p. 49.
5 Appeal Book at pp. 109–110.
6 Appeal Book at p.110. The report is found in the Appeal Book at pp. 50–75.
7 Appeal Book at p. 77.
8 Appeal Book at p. 101–107.
9 Appeal Book at p. 103.
10 Appeal Book at p. 101.
11 Appeal Book at pp. 124 and 149.
12 Appeal Book at p. 79.
13 Appeal Book at p. 78.
14 Appeal Book at p. 87.
15 Appeal Book at p. 90.
16 Appeal Book at p. 89.
17 Appeal Book at p. 91.
18 Appeal Book at p. 93.
[2014] FWCFB 2426
12
19 Appeal Book at p. 99.
20 Appeal Book at p. 97.
21 [2014] FWC 330 at para 31.
22 Christine Storer v On Call Interpreters and Translations [2014] FWC 47 at paras 12–15.
23 [2012] FWA 3399 at paras 12–18.
24 ibid., at para 19.
25 [2014] FWC 330 at para 47.
26 [2014] FWC 330 at para 32.
27 [2014] FWC 330 at para 33.
28 [2014] FWC 330 at para 34.
29 [2014] FWC 330 at paras 35–36.
30 [2014] FWC 330 at paras 38–39.
31 [2014] FWC 330 at paras 44–45.
32 [2014] FWC 330 at para 46.
33 [2014] FWC 330 at para 47.
34 Section 400(1) of the Fair Work Act 2009.
35 [2010] FWAFB 5343 at para 27.
36 Section 400(2) of the Fair Work Act 2009.
37 [2009] AIRC 211.
38 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408�409. See also Marschall v
Home Care Plus [2013] FWC 5299 at para 29.
39 [2014] FWC 330 at para 32(d).
40 [2009] AIRC 211.
41 [2009] AIRC 211 at para 24.
42 [2009] AIRCFB 809.
43 [2009] AIRCFB 809 at para 24.
44 [2009] AIRCFB 809 at para 24.
45 [2009] AIRCFB 809 at para 25.
46 [2009] AIRCFB 809 at para 28.
47 Exhibit A1 in matter number U2013/9909 before Commissioner Johns.
48 Appeal Book at p. 110.
49 Transcript at paras 328 and Exhibit R4 at para 43 in matter number U2013/9909 Commissioner Johns.
50 [2014] FWC 330.
51 PR546774.
52 PR549570.
