Amanda Rogerson v Aurizon T/A Aurizon Intermodal

[2015] FWC 4111

[2015] FWC 4111

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Amanda Rogerson
v
Aurizon T/A Aurizon Intermodal
(C2015/2524)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 18 JUNE 2015

Application to deal with contraventions involving dismissal - Extension of time.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 10 June 2015. Ms Amanda Rogerson has made an application pursuant to s. 365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute involving contraventions relating to her dismissal.  The dismissal of the Ms Rogerson from her employment with Aurizon Intermodal (Aurizon) is said to have occurred for the reason of redundancy, with effect on 19 March 2015.  Ms Rogerson lodged her application at 11:24 am on 14 April 2015, with the result that the application was outside of the time prescribed in s. 366(1)(a) of the Act.

[2] Section 366(2) allows for the Commission to allow a further period within which such an application is to be made, if the Commission is satisfied there are exceptional circumstances taking into account the reason for the delay, any action taken by Ms Rogerson to dispute her dismissal, any prejudice, including prejudice caused by the delay which might be suffered by the employer, the merits of her application and fairness as between Ms Rogerson and other persons in a like position.

[3] Ms Rogerson gave evidence about the reasons for the delay and the evidence is set out in Exhibits 1, 2 and 3 tendered in this proceeding. Shortly stated, Ms Rogerson gave evidence that on 8 April 2015, she attempted to electronically file a general protections application with the Commission.  At that stage, had the application been lodged successfully it would have been within time.  It was clear from the material attached to Exhibit 1 that there was an unsuccessful uploading of the general protections application, together with confusion in the registry as to the nature of the application being made. That is, Ms Rogerson’s attempted application was initially recorded as an unfair dismissal application.

[4] On 9 April, Ms Rogerson also followed up her earlier unsuccessful lodgement, although it was not apparent to her at that time that her lodgement had been unsuccessful, given that the only acknowledgement that she received from the Commission was an acknowledgement that a document had been filed and then she was also advised that she would be notified once the document had been taken to be filed.

[5] On 9 April, Ms Rogerson contacted the Commission again by email, asking for confirmation as to whether her application has been successfully lodged.  According to the undisputed evidence of Ms Rogerson, she received a phone call from a staff member in the registry on 10 April 2015, during which she queried whether the application had been successfully made, and was ultimately advised that it had not been and she was advised to try again.

[6] I should note that at the time that Ms Rogerson unsuccessfully attempted to make her original application on 8 April 2015, she had successfully made the payment of the filing fee, which is acknowledged in the result from the Commission's website screenshot of e-filing of an application.

[7] The undisputed evidence of Ms Rogerson was that Ms Rogerson, on 10 April 2015, during the aforementioned telephone discussion advised the member of the registry staff that she did not have access to her computer, in order to obtain the application for re-filing and would not have access until her return to Melbourne on 13 April 2015.  On that day, according to the undisputed evidence set out in documents attached to Exhibit 1, Ms Rogerson tried on two occasions to dispatch her application and again tried on the morning of 14 April, on a further two occasions, to dispatch her application before finally being successful at 11.24 am.

[8] Given the circumstances, I am satisfied that the explanation given by Ms Rogerson for the delay for the whole period of the delay is a satisfactory explanation.  It seems clear that well within time, Ms Rogerson unsuccessfully endeavoured to lodge her application and it did not become apparent to her that her application or her attempted lodgement had been unsuccessful until after the expiry of the time period set out in s. 366.  At that point, Ms Rogerson was not in a position to immediately seek to rectify the situation but did so at the earliest possible opportunity, and after some further unsuccessful attempts. was able to file her application.

[9] It is also clear on the evidence that Ms Rogerson did not simply sit on her hands and do nothing from 8 April, and had made genuine inquiries as to the progress of her application and genuine attempts to ensure that she complied within the statutory period.  For that reason I am satisfied that she has provided an acceptable explanation for the delay.

[10] Turning then to the question of the action taken by Ms Rogerson to dispute her dismissal.  It is also clear that, based on the material attached to Exhibit 1, she communicated with the employer after her dismissal and before lodging her application about her dismissal, and indicated that she was disputing her dismissal.  It is acknowledged, in my view properly, by Mr Johnston for Aurizon that the subsequent application that was made did not catch the employer by surprise, and that it was aware of Ms Rogerson's dissatisfaction.  That is a factor that weighs in her favour.

[11] As to the question of prejudice, the employer, again properly in my view, has accepted that the employer will not suffer any prejudice, other than the usual prejudice that is associated with defending applications of this kind, if an extension of time were granted, nor will not suffer any prejudice as a consequence of the delayed lodgement of the application.

[12] As to the merits of the application, both parties have filed materials in their respective applications and responses.  I note that the allegations as to contravention of the general protections provisions are disputed by Aurizon.  In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission’s function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, Ms Rogerson has an arguable case as to a contravention of the general protections provisions of the Act.

[13] As to fairness as between Ms Rogerson and persons in a similar position, Ms Rogerson has referred me to the decision of Commissioner Williams in Thorpe v Standard Communications Pty Ltd 1(Thorpe), a decision dealing with an extension of time in an unfair dismissal context but nevertheless relevant, in which an extension of time was granted in circumstances that are similar to Ms Rogerson's.  Noting, of course, that in addition to the circumstances in Thorpe, Ms Rogerson made successful payment of the filing fee within the time prescribed for making an application.

[14] It is clear from the structure of s. 366(2) that in assessing whether there are exceptional circumstances, account needs to be taken of all of the matters. Individual matters might not when viewed in isolation be particularly significant and so it is necessary to look at the matters collectively and ask whether collectively the circumstances are out of the ordinary, unusual, special or uncommon.  Even though when viewed individually the circumstances might not so be described.

[15] Having regard to the evidence in this matter, I am satisfied that when viewing the matters set out in s. 366 collectively, and applying those matters to the facts in this case that Ms Rogerson has demonstrated that there are exceptional circumstances which warrant a consideration of whether I should exercise my discretion to allow a further period within which the application may be made.

[16] Although statutory time limitations should be complied with, I am not aware of any reason why I should not in this case exercise my discretion to extend the time period.  This is a case where the applicant has made genuine attempts to comply with the statutory timeframe and has been frustrated in her endeavours by technology.  It is also a case where the applicant has made genuine endeavours after the event to follow up on the course of her application.

[17] I am satisfied that it is appropriate in the circumstances that I allow a further period within which to allow Ms Rogerson to make her application, and I extend the time within which an application under s. 365 may be made in this case until 5 pm on 14 April 2015. Consequently, the application is a valid application and an order to that effect has separately been issued in PR568186. I will refer the matter back to the registry for an allocation to a member to conduct a conference, as required by the Act.

DEPUTY PRESIDENT

Appearances:

A. Rogerson on her own behalf

D. Johnston for Aurizon T/A Aurizon Intermodal

Hearing details:

10 June 2015

 1   [2014] FWC 1085

Printed by authority of the Commonwealth Government Printer

<Price code C, PR568474>