1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Chris Lawless
v
Gary Hooper Family Trust T/A Barron River Towing
(C2018/897)
DEPUTY PRESIDENT ASBURY BRISBANE, 14 MAY 2018
Application to deal with contraventions involving dismissal – Whether further period to make
application should be granted – Representative error – Appropriateness of processes of
representative for dealing with applications – Whether applicant blameless – Further period
granted.
[1] This Decision concerns an application by Mr Chris Lawless under s. 365 of the Fair
Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a
General protections dispute in relation to his dismissal by Gary Hooper Family Trust T/A
Barron River Towing (Barron River Towing). Mr Lawless states in his Form F8 General
protections application that he was dismissed on 23 January 2018. The application was made
on 21 February 2018.
[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made
within 21 days after the dismissal took effect, or within such further period as the
Commission allows under s. 366(2). The application was made eight days outside the time
required in s. 366(1) of the Act. It is therefore necessary to determine whether a further period
should be allowed under s. 366(2) of the Act for the application to be made.
[3] Barron River Towing did not consent to participate in a conciliation prior to the
determination of whether Mr Lawless should be granted a further period. Directions were
issued requiring Mr Lawless to file a statement setting out the basis for the submission that
there were exceptional circumstances justifying the grant of a further period in which to make
his General protections application, by 4.00pm on Tuesday 20 March 2018. Barron River
Towing was directed to file and serve any material in relation to the matter by 4.00pm on
Tuesday 27 March 2018.
[4] Mr Lawless’ material was not filed as required by the Directions and following
correspondence from my associate on Thursday 22 March 2018, Mr Lawless’ representative
Unfair Dismissals Direct requested and was granted an extension of time, to 4.00 pm Friday
23 March 2018. Barron River Towing was afforded an extension until midday on Tuesday 3
April 2018. Mr Lawless’ representative filed material in accordance with the amended
Directions. Barron River Towing did not file any material prior to the hearing, or respond to
correspondence as to its intention to file any material.
[2018] FWC 2202
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 2202
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[5] The matter was listed for Objections Conference/Hearing on Wednesday 4 April 2018.
Permission to be represented in relation to the extension of time application was sought by Mr
Lawless and pursuant to s. 596 of the Act, I granted permission on the basis that no issues of
fairness arose; and it enabled the matter to be dealt with more efficiently, given that Mr
Lawless is relying in representative error as the basis for asserting that there are exceptional
circumstances justifying an extension of time in which to make his application. Mr Lawless
was represented at the hearing by Mr Tim Rizzuto, Industrial Relations Specialist of Unfair
Dismissals Direct. Mr Garry Hooper, Director appeared for Barron River Towing.
[6] Mr Lewis Smith, Industrial Relations Specialist of Unfair Dismissals Direct and Mr
John Bingham, Director of Unfair Dismissals Direct gave evidence as to why Mr Lawless
should be granted a further period in which to make the application. Witness statements
setting out the evidence of Mr Lawless, Mr Lewis and Mr Bingham were tendered and Barron
River Towing was given an opportunity to cross examine both witnesses.1
[7] At the conclusion of the hearing of 4 April 2018 I indicated that I was not satisfied as
to the date on which Mr Lawless gave an instruction to his representative to file his
application. Mr Lawless was given an opportunity to provide further evidence in relation to
this matter. Barron River Towing subsequently sought to be represented by the Motor Trades
Association of Queensland (MTAQ), and requested to be heard in relation to the further
evidence. A further Objections Conference/ Hearing was then listed for 16 April 2018, where
Mr Lawless was represented by Mr Rizzuto and Mr Paul Murray of the MTAQ appeared for
Barron River Towing.
EVIDENCE
[8] At the hearing on 4 April 2018, Mr Lawless gave evidence that he became aware of
his termination on 23 January 2018 and contacted Unfair Dismissals Direct by telephone on
that date. Mr Lawless made further contact with Unfair Dismissals Direct on 25 January 2018
to provide his email address, and again on the morning of 29 January 2018, to correct the
email address he had previously provided and to follow up his earlier contact. Mr Smith of
Unfair Dismissals Direct sent an email to Mr Lawless at 10.46 am on 29 January 2018,
requesting further information necessary for the lodgement of his application. The email was
annexed to Mr Smith’s Statement, and is in the following terms:
“Dear Chris Lawless
Thank you for your enquiry to Unfair Dismissals Direct. I apologise for not calling
back sooner, thank you for contacting our offices to provide the correct email address!
To allow us to complete our assessment of your case to see what action can potentially
be taken against your former employer, please provide the following by return email,
to the extent available:
1. A copy of your termination letter and any Employment Separation Certificate (if
available);
2. Details of any complaints you have made in relation to your employment;
3. Details of any leave you have recently taken, including medical certificates;
4. A recent payslip;
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5. A detailed timeline of the events leading up to your dismissal; and
6. Any additional information you feel is relevant to your claim.
There is no need for the assessment to be delayed simply because you do not have
some of the documents in your possession. Strict time limits apply to employment
claims. It is not uncommon for employers to refuse to provide an Employment
Separation Certificate at first instance, for example. Please provide as much of the
above that you have available. If we require anything further in order to complete our
assessment of your case, we will let you know in due course.”
[9] Mr Lawless provided the requested documentation that he had available to him shortly
after receiving the email from Mr Smith on 29 January 2018. Mr Lawless states that he
contacted Unfair Dismissals Direct by telephone after he had provided the documents, and left
a message for Mr Smith that he wanted to speak to someone before proceeding. Mr Lawless
also contacted Unfair Dismissals Direct again on 30 January and 31 January 2018 regarding
the “progress of his case.”
[10] Mr Lewis said he sent an email to Mr Lawless on 31 January 2018 attaching the Terms
of Engagement that Mr Lawless was to sign and return. The email states as follows;
“Dear Chris Lawless,
Thank you for providing Unfair Dismissals Direct with information concerning the
termination of your employment. We have undertaken a detailed consideration of the
same and are pleased to advise that Unfair Dismissals Direct is able to represent you
as your paid agent in an application pursuant to the Fair Work Act 2009 (Cth.). This
offer is conditional upon you returning a signed copy of our terms of engagement on
or before the day and time specified in our terms of engagement, and in the manner
specified therein.
We attach our terms of engagement for your perusal. You should read the document
carefully and, once you understand the contents and wish to proceed with us on that
basis, please return a signed copy of all pages to us.
Once received we expect your matter will be allocated to Lewis Smith, Industrial
Relations Specialist, who will prepare your claim, and your former employer will be
notified accordingly.
…”
[11] Mr Lawless signed and returned the terms of engagement on 4 February 2018 by
email. Mr Smith said he then sent a draft copy of the F8A application to Mr Bingham for his
review on 9 February 2018, and that Mr Bingham was to lodge the application in the
Commission. Mr Bingham said that he did not open the email from Mr Smith containing the
draft application until 20 February 2018, and subsequently reviewed and filed the application.
[12] At the hearing, I asked Mr Lawless whether he was sent a draft copy of the F8A
application by his representative when he had signed the terms of engagement. Mr Lawless
said that he had seen the application when he signed the terms of engagement, and in response
to a further question from me regarding when he gave the instruction for the application to be
filed, Mr Lawless said “I don’t really have the dates in front of me.”2 I also asked Mr Rizzuto
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about when a draft or a copy of the application was provided to Mr Lawless and had the
following exchange with Mr Rizzuto:
“THE DEPUTY PRESIDENT: Yes, so the terms of engagement was signed on
4 February and returned, and on 9 February a draft copy of the application was sent
by Mr Bingham for his approval and filing, and the email says: "This should be
slightly better, but I'm more than happy to amend" - and then nothing happens till
20 February. What I'd like to know is was there a final version of the application
shown to the applicant in that period?
MR RIZZUTO: Thank you, Deputy President. I might be able to shed some light on
this. So the form F8 that Mr Smith sent to Mr Bingham on the 9th, that was a draft. It
was meant to be a final draft, but not complete, so he sent it to Mr Bingham for
review. So it wouldn't have been shown to the applicant before that stage as it wasn't
final in that form. And now when Mr Bingham, as he wrote in his statement, opens it
three weeks later, he realised what had happened; he made the necessary amendments
for it to be a final draft, and submitted and filed the application as soon as possible.”3
[13] In response to questions about when Mr Lawless gave an instruction to file the
application, Mr Rizzuto said:
“MR RIZZUTO: You'll note that we only annexed the final page of the terms and
conditions. An element of the terms and conditions is of course stating that
Unfair Dismissals Direct will draft and file the application, so he gave the instruction
when he returned the signed terms and conditions.
THE DEPUTY PRESIDENT: Well, I want to know what the full terms and conditions
were then, Mr Rizzuto, because I can see nowhere between 9 February and
20 February when anything happened, and if the applicant knew on the first day that
he consulted your firm that he only had 21 days then why didn't he follow the matter
up between the 9th and the 20th when he hadn't been given an application to say this
is what we're going to file?
MR RIZZUTO: That was not our regular procedure at the time to show the applicant,
indeed our client, the application prior to filing, so it wouldn't have been normal
process for him to have been given a copy in any event.
THE DEPUTY PRESIDENT: Well, I want some more information about when he
gave the instruction and how to file this application, because I'm missing that part of
the equation.”4
[14] An extract of the terms of engagement was annexed to Mr Lewis’ statement
comprising the final page of the document, demonstrating that Mr Lawless signed the terms
on 4 February 2018. In response to a question as to Mr Lawless’ actions between 4 February
2018 when the instruction was given to file the application, and 20 February 2018 when the
application was filed in the Commission, Mr Rizzuto said that Mr Lawless had no reason to
believe that it had not been filed as Unfair Dismissals Direct had undertaken to prepare and
file the application, and Mr Lawless had not been advised of anything to the contrary.
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[15] At the conclusion of the hearing, I directed Mr Lawless’ representative to file a further
statement by close of business on Thursday 5 April 2018 that evidenced when Mr Lawless
gave an instruction for the application to be filed. I also made it clear that if it was asserted
that the signing of the terms of engagement included or constituted an instruction to file the
application, evidence of the contents of the terms of engagement in respect of this issue would
be required.
[16] A supplementary witness statement of Mr Smith was filed on Friday 6 April 2018,
with a complete albeit redacted copy of Mr Lawless’ signed terms of engagement. Barron
River Towing requested to be heard in relation to this evidence and a further hearing was
listed on 16 April 2018.
[17] At that hearing, Mr Smith explained the process he undertakes when accepting a new
client. Mr Smith said that he took instructions from Mr Lawless during an initial phone call
and then “would have” sent Mr Lawless a conditional offer of engagement, or a conditional
quote after taking instructions. Mr Smith also said that Mr Lawless told him he wanted to
proceed and that terms of engagement were sent, which contained the instruction to file the
application when signed and returned.
[18] Mr Lawless relies on the terms of engagement and the wording contained under the
heading “Scope of Work” that states that work undertaken by Unfair Dismissals Direct
includes taking instructions from the client, corresponding with the client from time to time,
reviewing supplied documents, preparing and filing an FWC application, considering and
implementing a strategy for the prosecution of the FWC application and providing
representation before the Commission at a conference before the Commission.
[19] The terms of engagement tendered by Mr Lewis also contain a term that states;
“You may indicate your acceptance of the terms and conditions contained in this
document, and instruct us to proceed with your claim, by returning a signed copy of all
pages of this document.”
[20] Mr Rizzuto said that essentially the receipt of the signed terms of engagement
constituted an instruction from Mr Lawless to file the application on 4 February 2018. In
response to a question from me regarding whether Mr Lawless made any contact with Unfair
Dismissals Direct after 4 February 2018, Mr Lewis said Mr Lawless may have contacted him
by phone or email but was unsure.
[21] Mr Murray submits that there is no evidence that a clear instruction was given by Mr
Lawless to file the application, and asserts there is a difference between receiving a clear and
unequivocal instruction and a reference to the filing of an application contained under the
scope of works of the terms of engagement.
[22] Mr Rizzuto said in closing, that Mr Lawless had given a clear and unambiguous
instruction and had no reason to believe the application had not been filed, and that up until
that time Mr Lawless had been in regular contact and bears no fault for the delay in filing.
CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED
The approach to deciding whether a further period should be granted
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[23] As previously noted, s. 366(1) of the Act requires that a general protections
application under s. 365 must be made within 21 days after the dismissal took effect or within
such further period as the Commission allows under s. 366(2) of the Act.
[24] Section 366(2) of the Act sets out the circumstances in which the Commission may
allow a further period for a General protections application to be made as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.”
[25] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
seeking the grant of a further period in which to make an application.5 A decision as to
whether a further period to make an application should be granted, involves the exercise of
discretion.6 The approach to deciding whether there are “exceptional circumstances” in a
particular case is that the term is given its ordinary meaning, and encompasses circumstances:
out of the ordinary course, unusual, special or uncommon, but not necessarily unique
unprecedented or rare; or
involving a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors that taken together are exceptional.7
[26] It is also not correct to construe exceptional circumstances as being only an
unexpected occurrence, although frequently it will be.8 Further, it is also necessary to
consider all relevant circumstances even where some or all are not exceptional in order to
determine whether in combination, the circumstances may be regarded as exceptional.
[27] In considering an application for an extension of time I must be satisfied that there are
“exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I
will consider each of those matters in turn.
Reasons for the delay
[28] The reason for delay advanced on behalf of Mr Lawless is representative error.
Generally parties who place matters in the hands of a representative such as a lawyer, paid
agent or union, and take all reasonable steps to ensure that instructions are provided that are
sufficient to enable steps to be undertaken as required by the Act, have a legitimate
expectation that their instructions will be carried out, and a failure on the part of such a
representative to do so is an exceptional circumstance in the sense that it is unexpected.
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[29] In Robinson v Interstate Transport Pty Ltd, 9 a Full Bench of the Commission held that
depending on the particular circumstances of a case, representative error may constitute
exceptional circumstances and be a sufficient reason to extend time. In that case the Full
Bench held that the conduct of the Applicant is a central consideration to deciding whether
representative error provides an acceptable explanation for delay. In particular the Full Bench
distinguished the case of an applicant who leaves the matter in the hands of a representative
and takes no steps to inquire as to the status of their claim, from one where an applicant gives
clear instructions to the representative to lodge a claim and the representative fails to carry out
those instructions, through no fault of the applicant. In the latter case an applicant is blameless
and it is more likely that representative error will be given significant weight in consideration
of whether there are exceptional circumstances justifying a further period to make an
application.10 Representative error can include inactivity or carelessness of an applicant’s
representative.11 It is also apparent from the case law concerning representative error as an
explanation for delay that it is necessary to balance the nature of the error and to consider the
contribution that the applicant’s conduct made to the error or the delay.
[30] In the present case, I accept that there was a representative error on the part of Mr
Lawless’ legal representatives Mr Smith and Mr Bingham, with respect to Mr Bingham not
opening the email containing the draft application from Mr Smith until 20 February 2018.
Further, it is apparent that there was inactivity on the part of Mr Smith and Mr Bingham in the
time between Mr Smith sending the draft application to Mr Bingham for his review and for
lodgement on 9 February 2018, and when Mr Bingham opened the email from Mr Smith on
20 February 2018.
[31] The evidence of both Mr Bingham and Mr Smith is that the usual procedure of Unfair
Dismissals Direct is that all applications are sent to Mr Bingham, who is ultimately
responsible for reviewing and filing them. The fact that Mr Bingham did not open the email
containing the application for some 11 days when he bore the responsibility of filing the
application involves carelessness and inactivity on his part. Mr Smith was also careless and
inactive by virtue of having sent the draft application to Mr Bingham without making any
attempt during the 11 days prior to it being filed, to confirm that either the draft needed any
amendments, or had been lodged with the Commission.
[32] The initial statements of Mr Bingham and Mr Smith in relation to the error and
inactivity are essentially concerned with taking the blame for the late lodgement of the
application and did not address the action that Mr Lawless took to provide a clear and
unequivocal instruction to file the application. Mr Lawless’ evidence on this point is also
somewhat vague. Mr Lawless suggested at the hearing that he had been sent a copy of his
application at the time he was sent the terms of engagement. However there is no mention in
the statements of either Mr Lawless or Mr Smith that this occurred, and the email containing
the terms of engagement that was annexed to Mr Lawless’ statement does not appear to
contain any attachment of an application, or indeed any reference to a draft application.
[33] The oral evidence of Mr Smith was that Mr Lawless gave an instruction to file when
he returned the signed terms of engagement on 4 February 2018, and that it was not the usual
practice for Unfair Dismissals Direct at the time to provide a draft of an application for the
client’s review or approval. Mr Rizzuto also said at the hearing that the application Mr Smith
sent to Mr Bingham on 9 February 2018 was intended to be a final draft but was incomplete,
and was sent to Mr Bingham for review, and that it would not have been shown to Mr
[2018] FWC 2202
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Lawless at the stage because it was not in its final form. This submission appears to be at odds
with Mr Rizzuto’s further assertion at the hearing that it was not their procedure to show the
application to an Applicant prior to filing, and that this would not have been normal process
for Mr Lawless to have been given a copy in any event.
[34] I have significant concerns about the manner in which Unfair Dismissals Direct
conducts its operations. The terms of engagement simply state that Unfair Dismissals Direct
is “able to represent” Mr Lawless in an application “pursuant to the Fair Work Act 2009”, by
undertaking activities including “preparing and filing” an application. The terms of
engagement do not specify the type of application that is to be made or that it will be made. I
am also of the view that the clause in the terms of engagement that states that by returning a
signed copy of the terms of engagement “You may indicate your acceptance of the terms and
conditions … and instruct us to proceed with the claim,” is not a sufficient basis for a clear
instruction to be given to file an application.
[35] Of most concern is that Unfair Dismissals Direct does not appear to inform its clients
as to what type of application is to be filed on their behalf or take any steps to confirm
information set out in the application before it is filed.
[36] In the present case it is far from clear whether Mr Lawless was provided with a copy
of the application before it was filed – either in draft or final form – or that the terms of the
application were discussed with him, much less the nature of the application that was to be
made on his behalf. Pleadings in an application can be a significant matter. They provide a
basis upon which a respondent responds to the application. In my view the practice of a
representative filing an application without it being reviewed by an applicant is undesirable.
While this may sometimes be the result of tight deadlines, it is not an appropriate practice for
a firm holding itself out as having expertise in dealing with dismissal claims, to adopt.
[37] I also note that the terms of engagement used by Unfair Dismissals Direct also refer
only to an application to the Commission and advise that representation will be provided for a
conference. It is not clear whether clients are informed that if their application is not resolved
at conference stage, they have not engaged representation for a hearing. This is of particular
concern with respect to a general protections application, where if there is no resolution at the
conference stage, a further application is required to be made to the Court.
[38] While I have significant concerns about how Mr Lawless could be said to have
provided a clear instruction to file an application with the Fair Work Commission in
circumstances where he:
was not informed about the type of application that is to be filed;
did not review the application for factual accuracy before it is filed;
does not appear to have been informed that if his matter was not resolved at
conference he would be required to make a further application to the Court;
and
the Court application is not covered by the terms of engagement.
[39] Notwithstanding my concerns, these are matters that are attributable to the business
model which appears to be utilised by Unfair Dismissals Direct and this should not be visited
on Mr Lawless.
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[40] There is evidence that Mr Lawless made regular contact with Unfair Dismissals Direct
regarding his claim until 31 January 2018. Problematic as they are, Mr Lawless also promptly
signed and returned the terms of engagement document. Given the terms of that document I
accept that Mr Lawless would have reasonably believed that he had instructed Unfair
Dismissals Direct to file an application with the Fair Work Commission disputing the terms of
his employment. On the basis of the Business Model used by Unfair Dismissals Direct, at the
point Mr Lawless signed and returned the terms of engagement, he had taken all necessary
steps within the time required, to ensure that his application was filed with the Commission.
But for the carelessness and inactivity of Mr Smith and Mr Bingham, the application could
have been filed within the required time.
[41] I accept that Mr Lawless could have made contact with Unfair Dismissals Direct to
ensure that his application had been filed or even to view what was going to be filed.
However, it was not unreasonable that Mr Lawless did not take these steps in the
circumstances that pertained in this case and it is not a sufficient basis upon which I could
apportion blame to Mr Lawless such that it would outweigh the representative error made by
Unfair Dismissals Direct.
[42] Applicants in unfair dismissal cases are very often not equipped to deal with legal
matters and to understand what is required for the purposes of giving instructions to a
representative. It is also not sufficient in a case where representative error is asserted as the
reason for the delay in lodging an application, and said to be a significant consideration in
establishing exceptional circumstances, that a representative simply issues a mea culpa. That
is not sufficient to establish exceptional circumstances. What is also required is evidence to
justify a finding that the applicant is blameless including evidence about steps an applicant
who has been impacted by representative error took to prosecute his or her application and
when those steps were taken.
[43] In the circumstances of this case, there was representative error and its effect was
compounded by the manner in which Unfair Dismissals Direct processes applications. Any
deficiency in that process should not be visited on Mr Lawless in circumstances where he did
all he was asked to do by his representative and was entitled to believe that an application
would be filed on his behalf. Accordingly this is a factor which supports the exercise of the
discretion to extend the time for Mr Lawless to make his general protections application.
Any action taken by the person to dispute the dismissal
[44] I accept that Mr Lawless took prompt steps to seek advice and made regular contact
with Unfair Dismissals Direct after first making contact on the day he became aware of his
dismissal. I also note that Mr Lawless did not give any indication to Barron River Towing that
he disputed his dismissal until his application was filed. I also consider this to be a neutral
factor.
Prejudice to the employer (including prejudice caused by the delay)
[45] Mr Lawless submits there is no prejudice to the Barron River Towing as a result of the
application being filed seven days out of time. Barron River Towing provided no evidence of
prejudice if an extension is granted other than the usual prejudice associated with being
required to defend the application. This is a matter that weighs in support of the exercise of
discretion to grant a further period to Mr Lawless.
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Merits of the application
[46] In the matter of Kornicki v Telstra-Network Technology Group12 the Commission
considered the principles applicable to the exercise of the discretion to extend time under
s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.”13
[47] After considering the limited material filed by the parties it is clear that there are
factual disputes between the parties – in particular about whether the Respondent was aware
of particular medication that Mr Lawless was prescribed when he commenced employment as
a Truck Driver. I am not satisfied that the application has no merit so that this factor weighs
against the grant of a further period. Neither am I satisfied that there is such apparent merit
that it should weigh in favour of an extension. Merit is a neutral factor in this case.
Fairness as between the person and other persons in a similar position
[48] In the particular circumstances of this case there are no other employees of Barron
River Towing in the same position as the applicant. If fairness is considered in a General
sense, it is well established that representative error has been accepted as weighing in favour
of a finding of exceptional circumstances, but that this is only so where the applicant is
blameless and has given clear instructions to file an application.
[49] In the circumstances of this case there are no other employees in the same position as
Mr Lawless and this consideration weighs in favour of granting the further period. However
this is a situation where I have found that representative error caused the delay, and it would
not be unfair to grant Mr Lawless an extension of time when other applicants in cases before
the Commission have been granted extensions for this reason.
CONCLUSION
[50] After considering all of the relevant factors and weighing them, I am satisfied that
there are exceptional circumstances sufficient for me to exercise my discretion to grant a
further period for Mr Lawless to make a general protections application. I extend the time for
Mr Lawless’ General protections application involving dismissal (C2018/897) to 21 February
2018. An Order to that effect will issue with this Decision. The matter will be referred for
conciliation.
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DEPUTY PRESIDENT
Appearances:
Mr T. Rizzuto of Unfair Dismissals Direct on behalf of the Applicant.
Mr G Hooper on behalf of the Respondent on 4 April 2018.
Mr P. Murray of the MTAQ on behalf of the Respondent on 16 April 2018.
Hearing details:
Brisbane.
4 & 16 April.
2018.
Printed by authority of the Commonwealth Government Printer
PR602082
1 Exhibit A1 Witness Statement of Mr Lewis Smith dated 23 March 2018; Exhibit A2 Witness Statement of John Malcolm
Bingham dated 23 March 2018.
2 Transcript of 4 April 2018 at PN148 - 154
3 Ibid at PN157-158
4 Ibid at PN159 - 163
5 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
6 Halls v McCardle and Ors [2014] FCCA 316.
7 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA
1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
8 Nulty v Blue Star Group [2011] FWAFB 975 at [13].
9 [2011] FWAFB 2728.
10 Ibid at [25].
11 Clark v Ringwood Private Hospital (1997) 74 IR 413.
FAIR AL OF THE FAIR WORK MMISSION THE SEAL OF THE
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12 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
13 Ibid.
