Alexie Wallace v Burswood Resort (Management) Limited

[2020] FWC 649

[2020] FWC 649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Alexie Wallace
v
Burswood Resort (Management) Limited
(C2019/1244)

DEPUTY PRESIDENT CROSS SYDNEY, 11 FEBRUARY 2020

Application to deal with contraventions involving dismissal.

[1] On 26 February 2019, Ms Alexie Wallace (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Applicant was employed by Burswood Resort (Management) Limited t/a Crown (the Respondent). The Applicant commenced her employment with the Respondent in February 2014. She alleged her dismissal took effect in April 2016, and that she was notified of her dismissal in June 2016. The Respondent denies that the Applicant was ever terminated and states that she remains a casual employee of the Respondent.

[2] General protections applications must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation the date when the dismissal allegedly took effect, an application for a remedy should have been lodged in May 2016. The application was therefore lodged outside of the time prescribed and was, in effect, lodged at least approximately two years and eight months after the last day on which such an application could have been made.

Background

[3] On 6 May 2019 I convened a directions hearing to program the Applicant’s extension of time application (that is, whether she would be allowed an additional period within which to lodge the Application). The directions hearing would set a timetable and the manner in which the matter would be determined. Directions were issued that provided for a timetable for the filing of Outlines of Submissions from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely.

[4] On 16 May 2019 the Applicant requested an extension of time for filing her submissions. That request was granted.

[5] On 27 May 2019 the Applicant filed with the Commission an Outline of Submissions addressing extension of time (the EOT Submission), together with a number of supporting documents. Some of those documents were forwarded by the Commission to the Respondent by email and thereafter issues as to confidentiality arose in relation to some of those documents. Those issues were resolved by the deletion of all emails by the Respondent.

[6] On 31 May 2019 the Applicant enquired as to how to obtain a confidentiality order, and on 7 June 2019 she sought such an order, with the request in the following terms:

“I would like to apply for a confidentiality order relating to all medical documentation I have submitted. I am unsure if this is possible but I have been advised that I am able to request this.”

[7] In order to ensure there was a clear understanding of the specific documents in relation to which confidentiality was sought, the Applicant was requested to provide the totality of documents in relation to which she sought a confidentiality order to the Commission for consideration.

[8] Between Friday 5 July 2019 and Monday 8 July 2019, six emails with attachments were received from the Applicant (the Confidential Documents). Certain clarification of the contents of those emails was sought by the Commission on 11 July 2019, most particularly whether the Applicant still relied upon the EOT Submission.

[9] On 29 July 2019 a further directions hearing was conducted. In that hearing the Applicant confirmed that she relied upon the EOT Submission. The Applicant was also asked by the Commission to consider, in lieu of a confidentiality order, whether she would consent to only the Respondent’s representative, Ms Martina Ivanovski of the Chamber of Commerce and Industry WA, having access to the Confidential Documents over which confidentiality was sought (the Confidentiality Proposal).

[10] On 1 August 2019 the Applicant responded to the Confidentiality Proposal as follows:

“Thank you for being in touch on Monday.

I believe it would be best for the submission of witness statements from the respondent occur prior to the release of the medical documents to Ms. Ivanovski.

Although it has been said that under a confidentiality order only she would have access to the documents, I have no guarantee that her knowledge of the contents alone would then not affect what is chosen to be submitted.

Knowledge of the medical documents and their contents could bias what is ultimately submitted in regards to witness statements.

While the confidentially order would prevent Ms Ivanovski from sharing the contents of the documents - I have would have no guarantee that this would have no bearing on the witness statements in regards to what is chosen to be submitted or omitted.

There will ultimately be no means by which to prove or disprove this either. The only way to ensure this would be to provide the medical documents under a confidentiality order only after witness statements by the respondent are submitted.

The documents have been submitted to support an out of time application. Procedural fairness as I see it requires the other party to know what information a decision is made upon and have the opportunity to respond, however it seems potentially detrimental to natural justice to provide such sensitive information at this point.

In regards to the other documents as requested I will advise by the end of the week/ASAP. I have been in contact regarding this delay.

As a final note, I write this particularly because the respondent claimed that crown had no knowledge of any hospitalisation in a previous phone conciliation. This is false.

If you could please advise what is possible…”

[11] The proposal contained in the above email was rejected by the Commission on 1 August 2019 and the Applicant was asked to again consider the Confidentiality Proposal as an acceptable way of dealing with the matter. That request to the Applicant was repeated on 5 and 8 August 2019.

[12] On 6 August 2019 further documents were provided by the Applicant to the Commission, and the Applicant requested that they, too, remain confidential (the Further Confidential Documents).

[13] On 9 August 2019 the Applicant filed a document described as “the main outline of my statement for a consideration of out of time” (the Applicant’s Further Submission). That document was in the form of a further submission, and has been considered as such.

[14] On 20 August 2019 the Respondent acceded to the Confidentiality Proposal subject to being granted liberty to apply to vary any confidentiality undertaking after considering the Confidential Documents (and presumably the Further Confidential Documents).

[15] Later on 20 August 2019 the Applicant rejected the Confidentiality Proposal in an email that contained numerous submissions, two of which were as follows:

“(i) The document I have submitted regarding the merits of the case does not make its case on these medical records.”

and

“(vi) I have made the decision to submit an outline of the merits of my case under the request that the confidential documents are given at a time that is appropriate.”

[16] On 24 August 2019 the Applicant forwarded to the Commission, and to the Respondent, a screenshot of the front page of a paper titled “Administrative Appeals Tribunal and ACT Bar Association Seminar ‘The Obligation to Assist’ 26 August 2009”.

[17] On 29 August 2019 I issued an Interlocutory Decision 1 relating to the Confidentiality Order sought by the Applicant. In that Decision, I directed the matter be further progressed in the following manner:

“[27] The Applicant must file with the Commission, and serve on the Respondent, any other documentary material upon which she intends to rely in support of the Application by no later than 4.00pm on 6 September 2019.

[28] The Respondent must file with the Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material upon which the Respondent intends to rely in opposition to the Application by no later than 4.00pm on 20 September 2019.

[29] The Applicant must file with the Commission, and serve on the Respondent, any outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 27 September 2019.

[30] The matter will thereafter be determined on the materials filed by the parties.”

(Original emphasis)

[18] On 6 September 2019 the Respondent submitted a request for the Directions to be varied in order to obtain a witness statement.

[19] On the same date, the Applicant advised my Chambers and the Respondent that she “will be in touch on the 12^th of September,” but also indicated that she would be unable to respond to any correspondence “until the end of this month” (being September, 2019) due to medical reasons.

[20] On 9 September 2019 the Respondent’s request for an extension to the filing of their material was granted, and the due date for the filing of the Respondent’s materials was extended to 24 September 2019 (a further two working days).

[21] On the same date, my Chambers received correspondence from the Respondent in the following terms:

“Thank you for your email.

Our request was made prior to receiving the Applicant’s email last week advising that she was seeking treatment and would not be in a position to comply with the Commission’s directions until the latter part of October.

We have no objection to the Applicant’s request for accommodation on this basis, however, the Respondent will need to receive the Applicant’s documents, submissions and witness statements before submitting its response.

Can you please confirm that this is also your understanding?”

[22] On 11 September 2019, the following correspondence was issued to the Respondent from my Chambers, and copied to the Applicant, in the following terms:

“Dear Ms Ivanovski,

I refer to the correspondence below and also to the Applicant’s correspondence of 6 September 2019 at 02.56pm (AEST).

The Deputy President has noted that the Applicant did not seek an adjournment in her correspondence of 6 September 2019.  The Respondent, on this basis, is directed to comply with the two day extension granted on 9 September 2019.

The Deputy President has however noted that the Applicant has a right of reply, and invites the Applicant to file her reply by 4.00pm on 30 September 2019, if she wishes to do so.”

[23] On 12 September 2019 my Chambers received correspondence from the Respondent in the following terms:

“Thank you for your time on the telephone yesterday.

The issue as I explained from the Respondent’s perspective, is not so much that the Applicant has not requested an adjournment, but that she has failed to comply with the directions of the Deputy President to file her papers by 6 September 2019. Compliance with this direction is particularly important so that we can obtain clarity around the basis for the Applicant’s argument and access to any additional materials she wishes to rely upon.

As I stated in my previous email, the Respondent would consent to the Commission allowing the Applicant some additional time to file her documents whilst she receives treatment. 

But, in our respectful submission, it would be unreasonable to expect the Respondent to comply with its direction to file its outline of submissions/witness statements in circumstances where it has not had the benefit of viewing the Applicant’s documents.

Please contact me should you have any further queries.”

[24] On the same date, my Chambers responded to the Respondent, and copied to the Applicant, in the following terms:

“Dear Ms Ivanovski,

Thank you for your correspondence below.

Chambers notes that the Applicant has filed her outline of submissions on 9 August 2019 and no further material by 6 September 2019 in accordance with the Directions. As such, the Respondent is still directed to comply with the amended Directions of 9 September 2019 to file their outline of submissions and any supporting materials.”

[25] On 24 September 2019 pursuant to the varied Directions, the Respondent filed an Outline of Submissions (the Respondent’s Submission) and a witness statement of Ms Clare Holyday dated 23 September 2019, together with annexures.

[26] Later on the same date, my Chambers received the following email from the Applicant addressed to the Respondent’s representative:

“Hi Martina but you should actually no longer be participating in this case

I will reply in October.”

[27] On 10 October 2019 my Chambers received the following correspondence from the Applicant:

“I am unable to respond until November. I am on sick leave from university for the rest of the month.

I have contacted crown twice this week regarding shift texts and have been ignored by the way. If this is how all casual employees are treated please advise.”

[28] On 3 December 2019, my Chambers emailed the Applicant advising that she had until 4.00pm on 13 December 2019, to file a reply submission, and that in lieu of such submission the matter would be determined on materials filed to date.

[29] On 17 December 2019, my Chambers received an email from the Applicant advising that she was unwell and had not attempted to read the Respondent’s Submissions.

[30] On 29 January 2020 at 10.20pm, my Chambers received an email from the Applicant advising:

“I have nothing further to add as the evidence speaks for itself.”

[31] On 29 January 2020 at 10.23pm, my Chambers received a further email from the Applicant, which forwarded her correspondence sent to the Respondent earlier that evening and is not detailed herein.

[32] On 2 February 2020, my Chambers received a final email from the Applicant, which commences, “Ready to hear a decision - I believe the evidence speaks for itself…”. The rest of the email is of a personal nature and is not detailed herein.

The Facts

[33] There is no contest between the parties that the Applicant has suffered health problems, or that those problems have been severe at times during the relevant period of consideration from April 2014 to February 2019.

[34] The Applicant was initially engaged by the Respondent on or about 17 February 2014 as a part-time Waitperson in one of the Respondent’s venues called the Merrywell. The Merrywell is a pub/restaurant. The Applicant worked a variety of shifts, Monday to Sunday including night shifts as necessary.

[35] Following the Applicant’s commencement of employment, there occurred a number of changes to the basis of her engagement from part-time to casual, and casual back to part-time, at the Applicant’s request. Where possible, the Respondent accommodated the Applicant’s requested changes.

[36] The relevant status change for the purposes of the Application was the request on 5 April 2016, where the Applicant requested a change in her employment status to casual. That request was made by exchange of text messages, and in the text messages the Applicant relevantly advised the Assistant Manager she dealt with, Ms Marnie Howell, as follows (among other things):

“So I have been really broken for way longer than I thought

I need to change to casual and find a new job, I think…” 2

[37] Ms Howell responded as follows:

“I’ll take you off the roster, so you don’t have to stress about work until you feel you want to come back and I’ll transfer you to casual as well, okay.”

[38] The Applicant replied (among other things):

“Oh my God Marnie, thank you so much. I have been putting off dealing with it...”

[39] Following the above exchange an Employee Change Advice from part-time to casual employment was completed. 3 This change resulted in the Applicant being paid, almost two months later on 1 June 2016, her outstanding annual leave in the amount of $553.02.4

[40] The above change in employment status was apparently the catalyst for the Application being made. At the commencement of the EOT Submission, the Applicant stated:

“My application for unfair dismissal involving general protections was made in December 2018 after receiving a debt notice from Centrelink. This debt was directly incurred due to the fact Crown Perth terminated my part-time contract via pay in lieu of notice on June 1st 2016 whilst I was receiving Sickness Allowance from the Department of Human Services.”

[41] On 24 May 2016 the Applicant again texted Ms Howell and said (among other things):

“[She had to] apply for Centrelink and totally go casual, i can’t commit to shifts until im better and i think with how overwhelmed i felt the other day I definitely can’t do part-time two for a while longer...” (Original text retained)

[42] The Applicant worked shifts on 19 and 21 May 2019. 5 On 28 May 2016, the Applicant advised the Respondent that she was unfit for duty for a period of three months. Subsequently, following the completion of a Fitness for Work Assessment, the Applicant was certified fit by Dr Paul Babich on 4 August 2016.

[43] The Applicant then returned to work on 2 September 2016 and completed 46 casual shifts between 2 September 2016 and 17 November 2017.

[44] In the EOT Submission the Applicant stated:

“When I contacted the FWC in August 2017, I was advised what had occurred was ‘unfair dismissal’ which only has a 21 day period. During this phone call they could not tell me when the 21 period would have started given the circumstances of the case. They said I would be out of time.”

[45] Subsequently, and until February 2019, the Applicant was at times unfit for work and at other times available for work. Similarly, at various times the Applicant made requests about her employment, enquiring whether she was employed on a casual or part-time basis, and the Respondent attempted to accommodate those requests.

[46] Within a week of receiving the debt notice from Centrelink in December 2018, the Applicant filed an application for unfair dismissal being application U2018/12841 (the Unfair Dismissal Application) on 12 December 2018. That matter was unable to be resolved at a conciliation conference held on 7 February 2019 and the Applicant discontinued the Unfair Dismissal Application on 22 February 2019.

Consideration

[47] This matter has been before the Commission for a considerable period of time. The Applicant has comprehensively stated her case in the EOT Submission and augmented it with the Applicant’s Further Submission. The Respondent has comprehensively stated its case in the Respondent’s Submission.

[48] While the Applicant has not filed any submissions or materials in reply, notwithstanding directions to do so, and it being noted that she had not sought that such direction be adjourned or vacated, I consider it important in the prompt administration of justice that this matter be determined. I further consider that due accommodation can be made for the Applicant by drawing no inferences from her failure to reply to the Respondent’s materials.

[49] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“366 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).”

[50] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a “further period” should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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 like position.”

[51] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[52] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[53] In the Applicant’s Further Submission, she stated:

“The decision to start an out of time application has been stated already. The receipt of a debt notice due to contravention of provisions regarding unfair dismissal involving general protections. The debt amount itself is not the issue. It is that the cause of the debt - the payout of my annual leave - and the subsequent actions of my employer - are unconscionable for such an incredibly large employer that purports to be an advocate for employing persons with a disability. Had my employer not provided false or misleading evidence to a commonwealth entity in regards to my eligibility for a social security benefit, this claim would not be necessary”.

[54] In the previous EOT Submission, the Applicant had explained the reason for delay as follows:

“My decision to lodge this application so far out of time is based on the fact that:

•  When I applied for Sickness Allowance (23/5/2016) I was a part-time employee

•  My employer was aware that I was going on 3 months leave due to sickness

•  My employer’s decision to advise a government department that the basis of my employment was casual is therefore in breach of the Criminal Code Act 1995 (under Division 137.1 (1a-c) as I had not even been advised of the change in my basis of employment

•  Furthermore, the nature of the contract change - where it was backdated to April 4 is a breach of the NES as the contract change cannot be backdated to a date prior to the payment in lieu; therefore it is not possible for Crown to argue that they were providing truthful information to centrelink

•  The decision for my employer to return a document to Centrelink with false or misleading information has had a significant effect on my life over the course of 2016, 2017, and 2018

•  This debt would not have been occurred had it not been for the actions of my employer, which were in breach of general protections, NES, fair work, and the criminal code and;

•  Had my employer not engaged in a course of discriminatory behaviour over the course of 2016, 2017, and 2018, I would not have been this financially disadvantaged.” (Original emphasis)

[55] The Respondenthas submitted that the Applicant knew that, as at April 2016, she became a casual employee. It was done at her request, and she had subsequently agitated for a return to part-time employment. That submission is clearly supported by evidence, in particular the text messages at paragraphs [36] to [38] above.

[56] The Respondent also noted that there was in fact no dismissal of the Applicant. She continued to work, as her health permitted, until her last shift on 11 November 2017.

[57] The Applicant was aware that her employment had changed to casual employment in April 2016. It was a change she was advised of, and of which she was clearly grateful. That she was aware fully is evidenced by her confirmation on 24 May 2016, that casual employment suited her circumstances, and her subsequent requests to return to part-time employment.

[58] As noted above, the parties agree the Applicant has suffered health problems that have been severe at times during the relevant period. The Applicant has correctly characterised her condition as a long term condition resulting in multiple hospitalisations. That condition has not, however, been consistently severe throughout the relevant period, and it is clear there have been times that the Applicant has been able to perform regular shifts. Accordingly, while the Applicant’s condition has been undoubtedly severe, it cannot explain all the delay in commencing the Application.

[59] The Applicant was in fact able to seek advice in August 2017, when she was advised that what had occurred was an “unfair dismissal” with a 21 day limitation period, and that she was out of time. The Applicant provides no acceptable reason for failing to act at that time.

[60] It isapparent the Applicant expressed no concern about her change to casual employment in April 2016. She knew and seemingly appreciated the change until she received the Centrelink debt notice over two and a half years later. Such a change of heart is not an acceptable reason for the delay. Similarly, the Applicant’s medical condition has not precluded the Application being filed. There is no credible explanation for the delay. That weighs in the Respondent’s favour.

(b) Action taken by the person to dispute the dismissal

[61] The Applicant pointed to many factors as evidencing her disputing the dismissal. However, notwithstanding that the Applicant sought the assistance of her Union at various times in 2017 and 2018 to change her working arrangements, the first challenge to an alleged dismissal did not occur until the filing of the Unfair Dismissal Application. Accordingly, this factor weighs in the Respondent’s favour.

(c) Prejudice to the employer

[62] Regarding prejudice, the Applicant submitted:

“In regards to detriment suffered by the delay, it is not possible for crown to argue that their capacity to operate as a business is affected as crown is WA’s largest employer which is a multi-billion dollar enterprise.

Their actions have been self-inflicted and could have been resolved if they had not discriminated against me. Failure to help me transfer to suitable employment after I made it clear that I could not work with Marnie after how she had treated me.”

[63] The Respondent, however, submitted:

“In good faith, and at her request, the Respondent agreed to move the Applicant to casual employment from April 2016.

After that period, it became evident that the Applicant continued to struggle in being able to work consistently.

The Respondent conducted welfare checks on the Applicant, enacted an individual development plan (with a view to her recommencing a part-time engagement), allowed her extended periods of time off work and attempted to find her another role suitable to her requirements.

Notwithstanding its above attempts to assist her, the Respondent now has to defend the Applicant’s claim and bears the inconvenience, financial expense and loss in productivity of doing so.”

[64] There is some force to the Respondent’s arguments on this factor. As I have found above, in agreeing to the Applicant’s change to casual employment in April 2016, it was seeking to accommodate the needs of the Applicant. Since that time it has sought to accommodate and, indeed has accommodated where possible, further changes to assist the Applicant.

[65] While the Respondent may be a “multi-billion dollar enterprise”, it will still suffer the prejudice of having to address what are clearly significantly dated allegations. To that extent, I note that Ms Holyday, the deponent of the only statement in this matter, no longer works for the Respondent. This factor weighs in the Respondent’s favour.

(d) Merits of application

[66] I have had the opportunity to read the materials filed by each party. I note the material has not been tested by way of cross examination, and the Applicant has not had the assistance of a legal practitioner in phrasing her case. Nonetheless, on the case as outlined by the Application it would appear the Applicant may face significant hurdles to success.

[67] Even accepting for the purposes of argument that a dismissal did occur in April 2016, with such an assumption involving the disregard of clear facts, it is difficult to discern the prohibited ground upon which that dismissal is said to be based. In the Application, the Applicant stated that the ground as it related to the claimed dismissal, as opposed to allegations of “refusing to hire me again as a part-time” in April 2017, or Section 351(2)(b) providing equal opportunities to employees, was:

“In regards the termination of the contract and actions of my employer, I believe it was in breach of the following:

(i) the transfer was surreptitious and at my detriment. I had advised my employer I was applying for sickness benefits in May, but my contract was changed a week later.

Breach: Ch3, Part 3-1 Section 342 Subsection 1c (Adverse action)

Breach: Ch3, Part 3-1 Section 352 (Temporary absence – illness or injury)”

[68] The Respondent maintains the Applicant was not dismissed, but continues as a casual employee. While I note there are difficulties faced in the Applicant’s expression of her case, I am not prepared at this early stage to find that her Application is unmeritorious. With assistance, possibly from a legal practitioner, it would be possible for the Applicant to advance a more coherent application. For this reason, the factor of the merits of the Application is a neutral consideration.

(e) Fairness between the person and other persons in a similar position

[69] The Applicant has submitted that the Commission should consider her medical condition, her drop in earnings, that she had previously applied for a supervisory role, and that she used to be trusted to perform a wide range of duties.

[70] Persons in a similar health, employment and delay position would have had the benefit of advice at some point in the over two year period of delay. Indeed it is the Applicant’s position that she also sought and received such advice in August 2017. This consideration weighs against an extension of time being granted.

Conclusion

[71] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being acceptable reason for delay, action taken to dispute the dismissal, prejudice to the Respondent and fairness between similar persons, all weigh in favour of a conclusion that there are not exceptional circumstances.

[72] I am not persuaded there are exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 6005

 2   Annexure CFH 9 to the Statement of Ms Clare Holyday dated 23 September, 2019 (the “Holyday Statement”).

 3   Annexure CFH 10 to the Holyday Statement.

 4   Annexure CFH 10 to the Holyday Statement.

 5   Annexure CFH 30 to the Holyday Statement.