Ali Dayoub v Webprofits Pty Ltd ATF for the Webprofits Unit Trust [2024] FWC 1392

1 Fair Work Act 2009 s.394—Unfair dismissal Ali Dayoub v Webprofits Pty Ltd ATF for the Webprofits Unit Trust (U2024/2980) COMMISSIONER CRAWFORD SYDNEY, 28 MAY 2024 Unfair dismissal application filed out of time – employer provided inaccurate information about the minimum employment period – satisfactory reason for the delay - exceptional circumstances – extension of time granted Background [1] Ali Dayoub (Mr Dayoub) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by Webprofits Pty Ltd as the trustee for the Webprofits Unit Trust (Webprofits). [2] Webprofits operates a digital marketing agency. Mr Dayoub commenced employment on 21 August 2023 in the position of Principal Consultant, Paid Media. Mr Dayoub was dismissed on 21 February 2024 on the basis that he had not proven to be a “good fit” for the business. [3] Mr Dayoub’s Form F2 unfair dismissal application was received by the Commission on 15 March 2024. [4] Webprofits initially filed a Form F3 employer response to the unfair dismissal application on 28 March 2024. That response identified two jurisdictional objections. Firstly, that Mr Dayoub’s application was filed more than 21 days after the dismissal took effect. Secondly, that Mr Dayoub had not completed the minimum employment period. [5] On 12 April 2024, Webprofits filed an amended Form F3 which included the withdrawal of its jurisdictional objection concerning the minimum employment period. I consider that concession was appropriately made given how the minimum employment period is calculated under the FW Act, which in summary is: • Under s40A of the FW Act, the Acts Interpretation Act 1901, as in force on 25 June 2009, applies to the FW Act. [2024] FWC 1392 DECISION -- 1 of 12 -- [2024] FWC 1392 2 • As of 25 June 2009, the Acts Interpretation 1901 had definitions of “month” and “calendar month” in s.22. The definition of a “month” is a “calendar month”.1 The definition of a “calendar month” is: “Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month”.2 • The definition identified above has been applied by the Commission to calculate the minimum employment period under the FW Act on various occasions.3 In this case, Mr Dayoub’s employment commenced on 21 August 2024. That means the six- month minimum employment period ended at midnight on 20 February 2024. Therefore, Mr Dayoub had completed the minimum employment period when he was dismissed on 21 February 2024. [6] I issued directions for the filing of material regarding whether Mr Dayoub should be granted an extension of time to file his application and listed a determinative conference/hearing in relation to this issue for 14 May 2024 in Sydney. [7] Mr Dayoub represented himself at the determinative conference/hearing on 14 May 2024. I granted permission for Webprofits to be represented by Phil Hayward from Haywards Solicitors on the basis this would enable the matter to be dealt with more efficiently. [8] At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference, given Mr Dayoub was representing himself. Mr Hayward was not familiar with the nature of a determinative conference but ultimately did not oppose this format for the proceeding. I conducted the proceeding as a determinative conference. Material filed Mr Dayoub [9] Mr Dayoub relied on the following material in support of his request for an extension of time: • Form F2 unfair dismissal application dated 15 March 2024. I marked the application Exhibit A1. • A copy of Mr Dayoub’s termination letter dated 21 February 2024. I marked the letter Exhibit A2. • An email from Mr Dayoub to the Commission dated 27 March 2024. The email contains evidence regarding why the application was filed late. I marked the email Exhibit A3. -- 2 of 12 -- [2024] FWC 1392 3 • A statement and submission from Mr Dayoub dated 17 April 2024. I marked this document Exhibit A4. • A copy of Mr Dayoub’s offer letter and contract of employment dated 18 July 2023. The contract identifies a commencement date of 21 August 2023. I marked the letter and contract Exhibit A5. • A copy of a presentation Mr Dayoub prepared for his six-monthly review dated February 2024. I marked this document Exhibit A6. • A statement and submission from Mr Dayoub containing responses to Webprofits’ Form F3 dated 17 April 2024. I marked this document Exhibit A7. • Correspondence exchanged between Webprofits and Mr Dayoub on 21, 22 and 26 February 2024 concerning Mr Dayoub’s dismissal. Mr Dayoub requested documents from Webprofits on 22 February 2024 relating to his employment and dismissal. On 26 February 2024, Mr Hayward wrote to Mr Dayoub on behalf of Webprofits and declined to provide the requested documents. I marked all the correspondence Exhibit A8. • A statement and submission from Mr Dayoub dated 8 May 2024. I marked the document Exhibit A9. • A copy of Mr Dayoub’s marriage certificate dated 11 November 2023. I marked the certificate Exhibit A10. • A copy of emails between Mr Dayoub and the Commonwealth Bank dated 26 April 2024. I marked the emails Exhibit A11. [10] Mr Hayward indicated there was no objection to the admission and marking of the filed material as evidence and that he did not require Mr Dayoub for cross-examination. I went through each document filed by Mr Dayoub, gave a brief description of the document, and marked the document as an exhibit. [11] At the commencement of final submissions, a dispute arose when Mr Dayoub referred to a reason for the delay as being that Webprofits had advised Mr Dayoub that he was not eligible to make an unfair dismissal application because he had not completed the minimum employment period of six months. Mr Hayward objected to Mr Dayoub making this argument on the basis that no evidence of any advice from Webprofits had been provided by Mr Dayoub. Mr Dayoub identified that he had raised this issue in a submission to the Commission dated 8 May 2024, which is Exhibit A9. Mr Hayward argued this document should be treated as a submission rather than evidence and that Mr Dayoub’s contention was not expressed with sufficient specificity for Webprofits to respond. [12] While the document marked Exhibit A9 is headed “Submission of the Applicant”, it clearly contains a mixture of evidence and submissions from Mr Dayoub. That was also the case with Mr Dayoub’s unfair dismissal application and the other “submissions” Mr Dayoub filed with the Commission. It is extremely common for self-represented applicants in dismissal -- 3 of 12 -- [2024] FWC 1392 4 matters to file documents that contain a mixture of evidence and submissions, as opposed to the normal approach of filing witness statements containing the evidence and a separate outline of submissions. That is unsurprising given they are not trained lawyers. [13] Given Mr Hayward’s objection, I offered the parties a couple of potential solutions to try and resolve this issue in a procedurally fair manner. I suggested Mr Dayoub could provide additional evidence on this issue in the witness box and Mr Hayward could cross-examine Mr Dayoub on the evidence. Mr Hayward objected to this approach on the basis he had nobody from Webprofits in attendance to instruct him on the additional evidence. I then suggested adjourning the determinative conference to allow Mr Dayoub to provide a witness statement regarding the relevant communications and to provide Webprofits with an opportunity to file reply evidence. After a brief adjournment, Mr Hayward advised that Webprofits did not support an adjournment and did not wish to file additional evidence. [14] Although there was some merit to Mr Hayward’s objection, I decided the most appropriate course of action was to allow Mr Dayoub to provide additional evidence in the witness box and to allow cross-examination by Mr Hayward. I was reluctant to prevent Mr Dayoub leading relevant evidence on the basis that he had not fully complied with procedural directions or because he filed evidence in the form of a submission. I was conscious a specific object of the unfair dismissal provisions in the FW Act is to establish procedures for dealing with unfair dismissal applications that “are quick, flexible and informal”.4 I was also mindful that the Commission is not bound by the rules of evidence and procedure,5 and has “considerable latitude” under the FW Act as to how it informs itself.6 While required to act impartially and with regard for procedural fairness, the Commission is empowered under the FW Act to conduct its duties “without unnecessary technicality and as informally as the circumstances of the case permit”.7 Members have a “statutory mandate to get to the heart of matters as directly and effectively as possible”.8 I also considered Webprofits would not be unduly prejudiced by this approach given I had granted permission for it to be legally represented and Mr Hayward would have an opportunity to test Mr Dayoub’s evidence. I also considered it was relevant that Webprofits had been on notice of this argument from Mr Dayoub since the relevant document was filed on 8 May 2024, and that no request for an alternative date or video-link so a Webprofits representative could attend the determinative conference to provide instructions had been made. [15] Mr Dayoub answered questions from me under an oath and was then cross-examined by Mr Hayward. [16] Mr Dayoub’s oral evidence was to the following effect: (i) Mr Dayoub attended a meeting with Catherine Dix (Chief Operating Officer) and Alex Cleanthous (Co-Founder) via video at 8:30am on 21 February 2024. During the meeting, Mr Dayoub was informed his employment was being terminated during the probationary period. Mr Dayoub raised concerns with the decision during the meeting and Ms Dix stated during the meeting that there was “no case” he could run because Mr Dayoub had been dismissed during the probationary period. Mr Dayoub was provided with contact details for Norgay HR Consulting and told he could speak with them about any remaining concerns. -- 4 of 12 -- [2024] FWC 1392 5 (ii) Mr Dayoub had a phone call with Norgay HR Consulting later that morning. During that conversation, Mr Dayoub was advised there was no point seeking assistance from the Commission because Mr Dayoub had not completed the minimum employment period. (iii)Mr Dayoub sent an email to Ms Dix, Mr Cleanthous and Paul Sprokkreeff on 22 February 2024 requesting copies of various documents because he was still considering contesting his dismissal. (iv) When Mr Dayoub received a letter in reply from Mr Hayward on 26 February 2024 which stated he was not entitled to access any of the requested documents, Mr Dayoub considered he had exhausted all options to contest his dismissal. (v) Mr Dayoub spoke to a friend who works as a taxation lawyer at some time after 26 February 2024. Mr Dayoub’s friend suggested Mr Dayoub should contact the Commission to check whether there is anything he could do to contest the dismissal. (vi) Mr Dayoub contacted the Commission, and an appointment was arranged for either 14 or 15 March 2024. Although Mr Dayoub understood he was speaking with a Commission staff member, it appears he was speaking with an external lawyer via the Commission’s Workplace Advice Service (WAS). After Mr Dayoub explained all the circumstances, he was advised by the WAS representative that he was eligible to make an unfair dismissal application but the 21-day filing period had lapsed. Mr Dayoub said he was not aware of the 21- day period until this phone call. Mr Dayoub was advised that his delay in contacting the Commission would be unlikely to be a sufficient excuse for the late filing of the application. [17] Mr Dayoub made oral closing submissions at the end of the determinative conference. Webprofits [18] In addition to its Amended Form F3 employer response, Webprofits relied on an outline of submissions dated 1 May 2024. [19] Mr Hayward made oral submissions at the end of the determinative conference. Extension of time [20] Section 394(2) of the FW Act provides that an unfair dismissal application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. Was the Application made within 21 days after the dismissal took effect? -- 5 of 12 -- [2024] FWC 1392 6 [21] As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”9 [22] There is no dispute that Mr Dayoub was dismissed effective 21 February 2024. Given the dismissal date of 21 February 2024, the 21-day filing period ended on 13 March 2024. Mr Dayoub’s application was filed two days late on 15 March 2024. As a result, Mr Dayoub needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act. Was the application made within such further period as the Commission allows? [23] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether Mr Dayoub first became aware of the dismissal after it had taken effect; and (c) any action taken by Mr Dayoub 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 Mr Dayoub and other persons in a similar position. [24] Each of the above matters must be considered in assessing whether there are exceptional circumstances.10 Consideration Reason for the delay [25] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 March 2024. The delay is the period commencing immediately after that time until 15 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.11 [26] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.12 [27] Mr Dayoub does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Dayoub has not provided any reason for any part of the delay.13 -- 6 of 12 -- [2024] FWC 1392 7 [28] Although Mr Dayoub previously argued that his recent marriage, stress, and financial difficulties were the reason for him missing the 21-day deadline, during the determinative conference Mr Dayoub confirmed the primary reason he was relying on was that he was told by Webprofits on 21 February 2024 that he was not entitled to make an unfair dismissal application and he did not realise this was incorrect until he received advice from a WAS representative on 14 or 15 March 2024. [29] Although Mr Dayoub’s explanation for the delay changed over time, I am not satisfied that this undermines the credibility of the reason ultimately relied upon by Mr Dayoub. Mr Dayoub gave evidence under oath that in addition to being advised during the phone call with a WAS representative on 14 or 15 March 2024 that he had completed the minimum employment period and was eligible to make an unfair dismissal application, Mr Dayoub was also advised that the fact that he had spoken to the WAS representative after the 21-day period had ended was unlikely to be an adequate reason for the delay in filing. Mr Dayoub gave evidence that he understood this advice to mean that he would be better placed if he relied on other factors such as his recent marriage, stress, and financial difficulties, rather than relying on any evidence about the advice he received via the Commission. I consider it is likely Mr Dayoub misunderstood the advice and that the WAS representative did not advise him not to raise the provision of incorrect advice by his employer as a reason for the delay. I suspect the WAS representative was merely making the point that Mr Dayoub’s delay in contacting the Commission was highly unlikely to be a satisfactory reason for the delay, in itself. I consider Mr Dayoub presented as a credible witness and I accept his explanation regarding why he did not initially raise the incorrect advice from Webprofits as a reason for the delay. [30] Turning to the issue of whether Mr Dayoub was given incorrect advice about whether could make an unfair dismissal application, I consider it is highly relevant that Mr Dayoub’s termination letter states: “As we communicated to you when you started working at Webprofits, your employment was subject to an initial minimum employment period. This period was to give us time to decide whether you were a good fit for our business and whether we would continue to employ you. Unfortunately, we have decided not to continue your employment for the following reasons as discussed on 21 February 2024: • Has not been a good match for the Principal Consultant role at Webprofits. Accordingly, we are terminating your employment within your minimum employment period, effective 21 February 2024…” [31] “Minimum employment period” is a term that is defined in s.383 of the FW Act. The term has a very important meaning in terms of an unfair dismissal application. A person is not protected from unfair dismissal unless they have completed the “minimum employment period”.14 The termination letter uses this specific term twice. The only available reading of the termination letter is that Webprofits was advising Mr Dayoub that he had not completed the minimum employment period and the only logical reason to use this term in the letter was to -- 7 of 12 -- [2024] FWC 1392 8 convey that Mr Dayoub was not eligible to make an unfair dismissal application. I consider the lack of detail in the termination letter regarding the reason for dismissal, which only refers to Mr Dayoub not being “a good match for the Principal Consultant role”, is consistent with this interpretation. Webprofits did not consider it needed to elaborate on the reason for Mr Dayoub’s dismissal because he was not able to contest the reason via an unfair dismissal application. [32] Mr Dayoub gave evidence under oath that he was told twice on 21 February 2024, initially during the meeting with Ms Dix and Mr Cleanthous, and then again during a subsequent phone call with Norgay HR Consulting, that he could not make an unfair dismissal application because he had not completed the minimum employment period. Webprofits declined an opportunity to adjourn the determinative conference so it could lead contradictory evidence from any of the people that spoke to Mr Dayoub on 21 February 2024. Mr Dayoub was cross- examined by an experienced lawyer and his credibility was not undermined. [33] I also note Webprofits initially raised a jurisdictional objection on the basis that Mr Dayoub had not completed the minimum employment period. This indicates Webprofits genuinely believed that Mr Dayoub had not completed the minimum employment period and was not eligible to make an unfair dismissal application. It would be unsurprising in those circumstances for its representatives to be stating this verbally to Mr Dayoub on 21 February 2024. [34] After considering all of the evidence and submissions, I find on the balance of probabilities that Mr Dayoub was told in two separate discissions with Webprofits representatives on 21 February 2024 that he was not eligible to make an unfair dismissal application because he had not completed the minimum employment period. [35] However, that is not the end of the matter. Mr Dayoub’s email to Ms Dix, Mr Cleanthous and Mr Sprokkreeff on 22 February 202415, where Mr Dayoub requests various information relating to his dismissal, indicates Mr Dayoub may have been questioning the advice he received about being ineligible to make an unfair dismissal application on 21 February 2024. Mr Dayoub generally accepted he did have some doubts about the advice, but indicated the subsequent letter from Mr Hayward dated 26 February 2024 extinguished any remaining hope that he could contest his dismissal. As indicated above, Mr Dayoub presented as a credible witness under cross-examination. I accept his evidence on this point. [36] I also accept Mr Dayoub's evidence that he remained of the view that he could not pursue an unfair dismissal application until he received advice from a WAS representative on 14 or 15 March 2024 that he had completed the minimum employment period. Mr Dayoub’s application was filed promptly after he received the advice, either on the same day, or the following day. [37] I find that Mr Dayoub has a satisfactory explanation for the delay in filing his unfair dismissal application. Although I accept Webprofits genuinely believed Mr Dayoub had not completed the minimum employment period when it provided this advice to Mr Dayoub on 21 February 2024 and I can understand why they would have arrived at that position, that advice was ultimately incorrect. I consider the provision of incorrect information by Webprofits means that Mr Dayoub has a satisfactory explanation for the delay. I find that Mr Dayoub accepted the advice from Webprofits was correct and understood that there was no point in him filing an -- 8 of 12 -- [2024] FWC 1392 9 unfair dismissal application until he received advice to the contrary from a WAS representative on 14 or 15 March 2024. Mr Dayoub then promptly filed his application. [38] I do not consider the provision of incorrect advice from an employer about an employee’s unfair dismissal rights can be described as part of the “ordinary course”, “usual”, or “common”. I find this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time. Did Mr Dayoub first become aware of the dismissal after it had taken effect? [39] Mr Dayoub accepted he was aware of the dismissal when it took effect on 21 February 2024. I consider this to be a neutral factor. What action was taken by Mr Dayoub to dispute the dismissal? [40] Mr Hayward accepted during the determinative conference that the email Mr Dayoub sent to Ms Dix, Mr Cleanthous and Mr Sprokkreeff on 22 February 2024 constituted an action that was taken by Mr Dayoub to dispute his dismissal. [41] I consider this factor weighs marginally in favour of a finding of exceptional circumstances and the granting of an extension of time. What is the prejudice to the employer (including prejudice caused by the delay)? [42] Webprofits did not refer to any particular prejudice it will suffer if an extension of time is granted. I consider prejudice to be a neutral factor. What are the merits of the application? [43] It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).16 [44] Mr Dayoub accepted during the determinative conference that performance concerns were raised with him verbally in early February 2024. According to Webprofits, Mr Dayoub’s performance did not improve and that was the reason he was dismissed on 21 February 2024. [45] However, Mr Dayoub strongly contests that he was not performing adequately and filed some evidence in the form of a document he prepared for his six-monthly review to refute the claim. It also appears that Webprofits was acting under the mistaken belief that Mr Dayoub could not contest the fairness of his dismissal, when the decision was made. That factor may have impacted on Webprofits’ assessment of the whether there was sufficient evidence to justify Mr Dayoub’s dismissal. [46] I consider this is a typical case where I do not have sufficient evidence to form a view about the strengths of Mr Dayoub’s case. I consider the merits to be a neutral factor. Fairness as between Mr Dayoub and other persons in a similar position -- 9 of 12 -- [2024] FWC 1392 10 [47] As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”17 In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.18 [48] Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [49] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above. [50] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.19 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.20 The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.21 [51] I consider the provision of incorrect advice to Mr Dayoub by Webprofits means he has a satisfactory reason for the delay. I have also found that Mr Dayoub took action to dispute the dismissal on 22 February 2024 when he requested evidence from Webprofits. I have not identified any factors that weigh against a finding of exceptional circumstances and the granting of an extension of time. [52] Having regard to all the matters identified in s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances. Conclusion [46] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made. [47] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,22 I am satisfied that it is appropriate to extend the period for the application to be made to 15 March 2024. [48] The application will proceed to be dealt with in accordance with the Commission’s normal processes. -- 10 of 12 -- [2024] FWC 1392 11 COMMISSIONER Appearances: Mr Dayoub representing himself. Mr Hayward from Haywards Solicitors representing Webprofits. Determinative conference: 14 May. Sydney. 2024. Printed by authority of the Commonwealth Government Printer <PR775416> 1 Section 22(b) of the Acts Interpretation Act 1901 as of 25 June 2009. 2 Section 22(g) of the Acts Interpretation Act 1901 as of 25 June 2009. 3 For example, Prigge v Manheim Fowles Pty [2010] FWA 28 and Timothy Henderson v Hertz T/A Belcardo Pty Ltd [2017] FWC 942. 4 Section 381(1)(b) of the FW Act. 5 Section 591 of the FW Act. 6 Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51, [115]-[118]. 7 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, [25]. 8 Ibid. 9 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 11 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 12 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 13 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 14 Section 382(a) of the FW Act. 15 Exhibit A8. 16 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 17 Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41]. 18 See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19]. -- 11 of 12 -- [2024] FWC 1392 12 19 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 20 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 21 Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 22 Fair Work Act 2009 (Cth) s 577. -- 12 of 12 --