[2024] FWC 261 The attached document replaces the document previously issued with the above code on 31 January 2024. The ‘Hearing Date’ that appears on the final page as 25 January should read 23 January. Hearing details: 2024. Adelaide; 25 January. Amended to Hearing details: 2024. Adelaide; 23 January. Liam Butterworth Associate to Deputy President Anderson Dated 12 February 2024. 1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Ms Prue Alexander v Cher Zollo Aesthetics Pty Ltd (C2023/7614) DEPUTY PRESIDENT ANDERSON ADELAIDE, 31 JANUARY 2024 Application to deal with contraventions involving dismissal – late lodgement – advice from Workplace Advice Service post deadline – whether reasonable explanation for delay – no exceptional circumstances – time for late lodgement not extended – application dismissed [1] On 5 December 2023 Prue Alexander (Ms Alexander or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with her dismissal. [2] Ms Alexander’s application is against her former employer Cher Zollo Aesthetics Pty Ltd (Cher Zollo, the respondent or the employer), which she alleges committed the contraventions. [3] The respondent opposes the application. It filed a response on 20 December 2023 raising a jurisdictional issue. It claims that the application is out of time and that time should not be extended. [4] Ms Alexander acknowledges that the application is out of time (by five days) but submits that exceptional circumstances exist for the late filing and that time should be extended. [5] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford1 requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the out of time issue if Ms Alexander’s application is to proceed further. [6] I issued directions on 3 January 2024. [7] I heard the out of time matter by video on 23 January 2024. [8] Permission was granted to both Ms Alexander and Cher Zollo to be legally represented. [2024] FWC 261 DECISION [2024] FWC 261 2 [9] In advance of the hearing, I sought and obtained Ms Alexander’s consent to access the full voice recordings of telephone calls between Ms Alexander and Commission staff prior to filing the application, and on which Ms Alexander relies. [10] These calls and related emails were admitted into evidence by consent, including a transcript of these calls prepared by my chambers. [11] I received evidence from three persons: • Ms Prue Alexander (applicant); • Ms Cher Zollo (Director); and • Mr Joshua Abbott (Respondent’s solicitor). [12] This decision concerns the extension of time question only. Facts [13] Facts relevant to the extension of time are generally not in dispute. [14] I make the following findings. Cher Zollo [15] Cher Zollo is a small business in the cosmetic and health industry operating in suburban Adelaide. It trades under the name SILK Laser Clinic Prospect. [16] The business is owned by Ms Zollo. Ms Alexander [17] Ms Alexander commenced working for Cher Zollo on 3 October 2023 as a full time Laser, Skin and Body Technician under an employment contract dated 14 September 2023.2 [18] The contract provided for a six-month probationary period. [19] Ms Alexander was dismissed on 9 November 2023. She was paid one week in lieu of notice.3 [20] Ms Alexander did not, at the time, overtly protest the decision or indicate to the employer that she intended to take advice or consider legal action. Request for legal advice [21] In the fortnight immediately following dismissal, Ms Alexander’s evidence was that she felt upset and stressed by what had happened. She also considered that her final payment had not been correctly calculated. [2024] FWC 261 3 [22] On Tuesday 21 November 2023 Ms Alexander attended in person at the counter of the Fair Work Commission (Commission) in Adelaide. She spoke to a registry officer. She raised a concern about her final pay and the circumstances which had led to her dismissal. Ms Alexander was informed that she should obtain independent advice on both issues, of the right to contact the Fair Work Ombudsman (FWO) on the payment issue, and of the capacity to make a dismissal claim (including a general protections claim) in the Commission. The registry officer provided Ms Alexander with contact details for the FWO, with details of the Commission’s Workplace Advice Service (WAS) and with a blank form F8 (general protections application involving dismissal). [23] Ms Alexander read and considered the information she had been given. [24] According to Commission records admitted into evidence,4 on 21 and 22 November 2023 Ms Alexander made three brief calls to the Commission’s enquiry line (1 minute 35 seconds, 1 minute 31 seconds and 7 seconds) but disconnected before being spoken to by a staff member. [25] At 1.15pm (SA time) on Thursday 23 November 2023 Ms Alexander made an online request to the Commission to access legal advice from the WAS.5 [26] The WAS is a service provided by the Commission whereby eligible persons are referred to participating external legal practitioners for the provision of initial free legal advice on certain workplace matters (including matters associated with termination of employment). Legal advice via the WAS can be accessed prior to or once applications have been made. [27] Ms Alexander’s online request stated that it concerned “general protections” and “I need help before an application is lodged”. It also stated that she was not then represented by a lawyer or paid agent and was not a union member. [28] Ms Alexander immediately received an email response from the Commission (23 November 2023, 1.15pm) which read:6 “Thank you for submitting your Workplace Advice Service Request form. We will be in touch within 5 business days about whether or not we can progress your request. Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application. If you need help faster than that, other legal help is available. If you have any questions, you can email us at was@fwc.gov.au, or call us on 1300 799 675.” (emphasis in original) [29] On Friday 24 November 2023 Ms Alexander contacted the Fair Work Ombudsman (FWO) about her final payment. She was allocated a customer reference number by the FWO, referred to a “fair work” government web site and told to “get ready for our call”7. [2024] FWC 261 4 [30] Ms Alexander’s evidence was that she spoke to a FWO officer on that or the following working day about the wage payment, and that the payment issue was quickly rectified. Communication 28 November 2023 [31] By email sent at 8.20am (SA time8) on Tuesday 28 November 2023 the Commission’s WAS advised Ms Alexander that it had scheduled a telephone appointment for Ms Alexander to obtain free legal advice from solicitors Mark Gustavsson & Associates on 1 December 2023.9 The email included the following which was highlighted in a shaded orange box: “A request for legal help from the Workplace Advice Service is not an application to the Commission. Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.” (emphasis in original) [32] A reminder email concerning the appointment was sent shortly thereafter by the Commission (at 8.30am that same day10). The reminder email repeated the same text, again highlighted. [33] Shortly after receiving these emails, at 9.20am on 28 November 2023 Ms Alexander telephoned the Commission’s WAS enquiries line. The call was not immediately answered and went to message bank. Ms Alexander left the following voice message:11 “Hi can someone please call me regarding a lawyer’s appointment Friday which puts me outside of my 21 day claim period…Thank you.” [34] Fourteen minutes later, at 9.34am, an officer of the Commission’s WAS enquiries line returned Ms Alexander’s telephone call. A discussion ensued as follows:12 “Ms Alexander: Hello Commission Officer: Hi, [Name Redacted] from Workplace Advice Service, how can I help? Ms Alexander: Hi .. umm … I got a message, an email, this morning just … umm … advising me of a legal advice appointment on Friday. Commission Officer: Ah-huh Ms Alexander: Which I am able to attend but it is after the 21 days … Commission Officer: Ok Ms Alexander: …so… I know that that doesn’t become, you know, too problematic… Commission Officer: Mm-hmm [2024] FWC 261 5 Ms Alexander: …but I just don’t know that I want to … go through with it. Commission Officer: Look you can cancel it if you think that it’s not helpful but you can also try to lodge the application and after that legal advice that you receive on Friday… Ms Alexander: Mm-hmm Commission Officer: …if you want to add something to it or provide supporting documents, or amend something in your application you can do that as well, but it’s totally up to you. Ms Alexander: Ok… umm… There’s no way that it can be brought forward? Commission Officer: No unfortunately because there are separate partners that we use and we already asked them to provide the first available and that one was the first that they could <inaudible>. Ms Alexander: Yep. Alright. That’s fine, I’ll just leave it there. Commission Officer: Sure. Thanks for your call then. Ms Alexander: Thank you, bye. Commission Officer: Thanks bye.” [35] At 9.42am an officer of the Commission’s WAS enquiries line again returned Ms Alexander’s telephone call. Upon it being confirmed that Ms Alexander had just had her enquiry responded to by that same officer, the call ended.13 Provision of legal advice [36] The twenty-one day period passed on 30 November 2023. Ms Alexander did not make an application that day. Her WAS appointment for the provision of legal advice remained scheduled for the following day. [37] Ms Alexander attended (by telephone) the WAS appointment with Mark Gustavsson & Associates on Friday 1 December 2023, and obtained legal advice. [38] Following the appointment, Ms Alexander considered the advice. Ms Alexander had been informed that if she intended to make a claim and to have the solicitors act for her, she needed to complete client engagement details. General protections application [39] Ms Alexander decided to engage the solicitors and make a general protections application. She completed the firm’s client engagement details and returned them. Ms [2024] FWC 261 6 Alexander’s evidence was that she could not recall whether she did so on 1 December 2023 or on the following Monday 4 December 2023. [40] Having received instructions and engaged Ms Alexander as its client, Mark Gustavsson & Associates prepared a general protections application. It was filed online on 5 December 2023. Submissions Ms Alexander [41] Ms Alexander submits that time should be extended because the appointment she requested for the provision of legal advice from the WAS had been scheduled by the Commission outside the twenty-one day filing period. [42] Ms Alexander submits that she raised this concern with a Commission officer inside the twenty-one day period and requested that an earlier appointment be provided, but this was not granted. Ms Alexander submits that had the appointment been rescheduled to an earlier date then she would have filed within time. [43] Ms Alexander submits that she was attentive to her rights to make an application, that it was reasonable that she obtain legal advice before doing so, that she followed up immediately with the Commission once it became apparent that the allocated appointment time was outside the time period, and that she promptly gave instructions to her solicitor once she had received legal advice. [44] Ms Alexander also submits that her application would not have been late had the employer given her the option of working out the one week in lieu of notice. [45] Ms Alexander also submits that the delay was caused by stress and shock in the wake of having been dismissed. [46] Ms Alexander submits that it would be unfair in these circumstances to not permit her application to proceed. Cher Zollo [47] Cher Zollo submits that Ms Alexander waited until relatively late in the twenty-one day period before seeking legal advice. [48] Cher Zollo submits that Ms Alexander seeks to shift blame for the delay to the Commission’s WAS service when in fact she could have sought legal advice at any time following dismissal. The WAS was not the sole vehicle by which advice could have been obtained. [49] Cher Zollo submits that Ms Alexander was put on notice in writing on multiple occasions and verbally by a Commission officer that waiting to obtain advice from the WAS was not a basis to delay making an application and did not set aside statutory obligations to file [2024] FWC 261 7 within time. Ms Alexander was reckless in not taking that warning on board. She made a decision to wait until after the appointment which she knew would take her beyond the twenty- one day period. [50] Cher Zollo submits that these are not exceptional circumstances given that Ms Alexander knew of the deadline for lodgement, had calculated the date the deadline would pass, the fact of the warnings provided by the Commission, the calculated risk she took in delaying until after the twenty-one day period had passed, and the alternate options she had to seek advice immediately after being dismissed or file within time and supplement or amend her application once advice had been received. Consideration [51] Section 365 of the FW Act provides: “Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.” [52] It is not in dispute that Ms Alexander is eligible to make a general protections application. She was dismissed. It is an agreed fact that the dismissal took effect on 9 November 2023. [53] Section 366 provides a time limit for filing applications: “Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). (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 [2024] FWC 261 8 (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 like position.” [54] Having been filed on 5 December 2023 the application is five days out of time. [55] I now consider whether an extension of time should be granted. [56] An applicant for an extension of time has an onus to adduce evidence in support of matters which the applicant asserts constitute exceptional circumstances.14 [57] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.15 A decision whether to extend time under s 366(2) involves the exercise of a discretion.16 [58] I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”17 [59] The principles in Nulty have been cited with approval by subsequent full benches of the Commission.18 [60] I now consider each of the factors in s 366(2). Reason for delay (s 366(2)(a)) [61] The reason for the delay is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.19 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.20 [2024] FWC 261 9 [62] However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all if the circumstances are otherwise exceptional.21 [63] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.22 [64] In this matter, the delay period is the five days from 1 to 5 December 2023 inclusive. [65] I now consider the three reasons advanced by Ms Alexander. The first two can be dealt with simply. Not given option to work out notice [66] Ms Alexander submits that her application would not have been late had the employer given her the option of working out the week in lieu of notice, with the consequence that her date of dismissal would have been a week later. [67] There is no merit in this contention. It is based on a counterfactual that did not occur. The date a dismissal takes effect is a question of fact. Calculating the twenty-one day period is based on events that occurred, not those that could have but did not occur. Ms Alexander’s dismissal did not take effect a week later. It took effect on 9 November 2023 when it was notified. The employer notified Ms Alexander that a week in lieu of notice would be paid. That is what happened. [68] Moreover, there is no suggestion that the employer’s decision to pay a week in lieu rather than require the notice period to be worked out was beyond the decision-making authority of the employer or contested at the time. Ms Alexander did not work after 9 November 2023 nor was she employed beyond that date. [69] This explanation does not reasonably explain the delay. Stress and shock [70] Ms Alexander submits that the delay was caused by stress and shock in the wake of having been dismissed. [71] I accept Ms Alexander’s evidence that she had not experienced dismissal previously and that, in a general sense, it caused her to feel upset and stressed particularly in the days immediately following. [72] However, it is not unusual that a dismissed employee will, in the wake of dismissal, feel this way. The relevant question is whether any such feelings relevantly impacted Ms Alexander’s capacity to file an application within time. [2024] FWC 261 10 [73] Ms Alexander led no medical or other probative evidence of a health related incapacity arising from being dismissed. Rather, the evidence is that inside the twenty-one day period, and at least from 21 November (day twelve after dismissal), Ms Alexander was able to pursue her industrial interests. In that ten-day period, Ms Alexander questioned the final wage payment and pursued the dismissal issue by drafting emails, making telephone calls, visiting tribunal offices and considering materials she had sourced or been given. [74] This explanation does not reasonably explain the delay. WAS appointment outside 21-day period [75] The primary reason for delay advanced by Ms Alexander is that legal advice concerning a potential claim arising from being dismissed was received one day after the time period had expired, and that she had requested the Commission to arrange an earlier appointment to enable her to file within time, but was refused. [76] Whilst this submission has some superficial attraction, for the following reasons and when the evidence is considered as a whole and in context, I do not consider this explanation to materially weigh in favour of a finding of exceptional circumstances. [77] Firstly, it was a forensic decision made by Ms Alexander on 28 November 2023, two days prior to the statutory deadline, to not lodge an application during the following forty-eight hours despite knowing that the deadline would then pass and despite having been expressly informed in writing twice that day by the Commission that: “If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.” [78] Further, the evidence is that this guidance was expressly confirmed and expanded on in the telephone call between Ms Alexander and a Commission officer that same day when Ms Alexander was informed: “…you can also try to lodge the application and after that legal advice that you receive on Friday if you want to add something to it or provide supporting documents or amend something in your application you can do that as well, it’s totally up to you.” [79] Ms Alexander did not do so. In not doing so she took a calculated risk that if she decided, after advice, to make a claim, then the claim would be late. [80] I take into account Ms Alexander’s submission that she did not do so because she needed to first take advice, and because she was unfamiliar with making a claim. [81] I readily accept that it is desirable for a person initiating legal action to source and take advice on their rights prior to doing so. To that extent, it was reasonable for Ms Alexander to wish to be advised by a legal practitioner about her prospects before making a claim. However, Ms Alexander materially contributed to the compressed time that she ultimately had to receive and consider the legal advice she sought. [2024] FWC 261 11 [82] I also take into account that making an application oneself is a daunting task to a person unfamiliar with what is required. However, on 21 November 2023 Ms Alexander was given the form F8 by a Commission officer. The form provided guidance on what was required. Online lodgement was available. The Commission website, expressed in plain English, gave further guidance. In this matter, the delay was primarily occasioned by Ms Alexander’s desire to first obtain legal advice. [83] Secondly, Ms Alexander’s explanation focuses solely on her desire to obtain legal advice from the Commission-administered WAS notwithstanding a range of other professional legal advisers and advisory services operating in the community; some at cost, some with costs after a free initial consultation, and some free of cost. Further, the Commission’s email to Ms Alexander on 23 November 2023 in response to her request to access the WAS expressly notified her of this fact: “Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal general protections dismissal application, if you need help faster than that, other legal help is available” (underlining to a website link) [84] Thirdly, when viewed in context, Ms Alexander’s explanation inappropriately seeks to shift blame for the delay onto the Commission for not moving her WAS appointment earlier than scheduled. This is unreasonable given that Ms Alexander was in no way misled by the Commission or its officers given that: • the Commission’s written notification to Ms Alexander on 23 November 2023 in response to her request to access the WAS expressly notified that “we will be in touch within five business days about whether we can progress your request”. This is what happened; • the two written emails by the Commission on 28 November 2023 expressly informed Ms Alexander (in highlighted text) of the need to file within time despite having been granted a WAS appointment; • the telephone advice given to Ms Alexander on 28 November 2023 provided the same caution and guidance, and explained why the appointment could not be moved earlier; and • Ms Alexander was not confused by the difference between making an application to the Commission for legal advice via the WAS (on the one hand) and making a general protections application to the Commission (on the other). [85] In considering the explanation for the delay I take into account that Ms Alexander acted immediately to contact the Commission on 28 November 2023 (after receiving the aforementioned emails), was concerned about the deadline fast approaching, initiated a request to bring forward the appointment time, and attended the appointment when scheduled. These factors weigh in her favour. [86] I also take into account that Ms Alexander acted promptly after taking advice on 1 December 2023 to provide instructions to her solicitors (whether those instructions were given [2024] FWC 261 12 that day or the following Monday). I also take into account that Ms Alexander’s solicitors acted promptly, once instructed, to prepare and file the application. [87] These factors also weigh in Ms Alexander’s favour but that notwithstanding, they all occurred during the delay period because Ms Alexander had knowingly made a forensic decision two days earlier to risk filing a late application by waiting to access the scheduled WAS appointment and elected to not immediately file an in-time application under her own hand or after sourcing alternate legal assistance inside the known time period. [88] As observed by the Commission in Mitchell v Mungaberenna Aboriginal Corporation:23 “[31] Whether a person decides to avail themselves of legal advice or representation (free or otherwise) is a matter for them. It is not a matter that ordinarily justifies a delay in the filing of an application.” [89] Considered overall, whilst Ms Alexander acted promptly during the delay period, she made a decision not to file within time despite guidance that she should do so, and her reasons for not doing so, whilst somewhat in her favour, do not in the face of the explicit cautions given objectively provide a reasonable explanation for the delay. [90] Neither this reason for delay nor the first two reasons, when considered individually or collectively, weigh materially in favour of a finding of exceptional circumstances. Action taken to dispute dismissal (s 366(2)(b)) [91] Ms Alexander did not, at the time of dismissal, dispute the decision to dismiss nor was the employer put on notice prior to filing the claim that a general protections application was to be made or was being contemplated. [92] This is a neutral consideration. Prejudice to the employer (s 366(2)(c)) [93] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.24 [94] If time is extended, the current application would have to be further responded to by the employer, involving time and cost. The matter would, in the first instance, proceed to conciliation and, if not resolved, Ms Alexander would have the right to press her application in the courts. The evidence of Ms Zollo is that these impacts constitute prejudice. [95] Whilst accepting that the employer, being a small business, would incur time and cost in dealing with further proceedings, the prejudice caused by the delay is not unique. The costs referred to by Ms Zollo are generally comparable to what would have been expended by the employer in defending an in-time application, had one been made. [2024] FWC 261 13 [96] This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.25 [97] This is a neutral consideration. Merits of the application (s 366(2)(d)) [98] Merit proceedings would concern whether the employer dismissed Ms Alexander for an unlawful reason. [99] Further evidence on these matters would be required to make relevant findings of fact. Noting the reverse onus of proof in the FW Act concerning general protections applications, it is premature to express a view on that question. [100] This is a neutral consideration. Fairness between persons in similar position (s 366(2)(e)) [101] Cher Zollo refers to past decisions of the Commission (including Mitchell v Mungaberenna Aboriginal Corporation and Shaw v ANZ Bank26) and submits that granting an extension in this matter would be unfair to persons who had extensions denied in those cases. [102] Conversely, Ms Alexander refers to past decisions of the Commission granting extensions in what is also said to be comparable circumstances. [103] I accept neither submission. Past decisions of the Commission, including those referred to by both parties, inevitably involve factual differences that provide points of distinction. Whilst there are applicable principles concerning extending time drawn from decided cases, the factual circumstances are generally distinguishable. In all cases, the relevant issue is whether, on the facts of each case, exceptional circumstances exist. [104] I decide this matter by reference to the facts and evidence pertaining to Ms Alexander and Cher Zollo, not more broadly. [105] This is a neutral consideration. Conclusion [106] The five-day period of delay in this matter is not substantial but in the context of a twenty-one day statutory time limit, is also not immaterial. [107] The explanation for delay insofar as it concerns Ms Alexander’s desire to first obtain legal advice from the Commission-administered WAS before deciding whether to file a claim does not, when the evidence is considered as a whole and in context, provide a basis for concluding that exceptional circumstances exist. [108] Nor do the other reasons for delay that have been advanced. [2024] FWC 261 14 [109] All other considerations required by s 366 are neutral. No factors weigh materially in favour of a finding of exceptional circumstances. [110] There being no exceptional circumstances, the time for lodgement cannot be extended. Disposition [111] As time for late lodgement has not been extended, application C2023/7614 is out of time and cannot proceed further. It must be dismissed. [112] An order giving effect to this decision will be issued in conjunction with its publication.27 DEPUTY PRESIDENT Appearances: M. Gustavsson of Mark Gustavsson & Associates, with permission, on behalf of P. Alexander J. Abbott of O’Loughlins Lawyers, with permission, on behalf of Cher Zollo Aesthetics Pty Ltd Hearing details: 2024. Adelaide; 25 January. Printed by authority of the Commonwealth Government Printer <PR770825> 1 [2020] FCAFC 152 2 R1 Attachment CZ1 3 A1 Email 9 November 2023 4 A6 page 2 5 A2 [2024] FWC 261 15 6 A2 7 A7 8 the identical email at A6 drawn from Commission records has a time reference of 8.51am which appears to be eastern time 9 A4 10 A3 11 A6 Call Recording 1 12 A6 Call Recording 2 13 A6 Call Recording 3 14 Smith v Canning Division of General Practice [2009] AIRC 959 15 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21] 16 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316 17 [2011] FWAFB 975 “Nulty”, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251, [5] 18 John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167, [6] 19 Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [30] and [36] 20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [35]-[45] 21 Stogiannidis (ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288 22 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 23 [2023] FWC 2033 24 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 25 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 26 [2015] FWCFB 287 27 PR770826