Amber Wilkinson v Emergency Services Telecommunications Authority T/A Esta

[2018] FWC 564

[2018] FWC 564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Amber Wilkinson
v
Emergency Services Telecommunications Authority T/A ESTA
(C2017/6276)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 JANUARY 2018

Application to deal with contraventions involving dismissal.

[1] Ms Amber Wilkinson resigned her employment on 17 September 2017 to take effect on 1 October 2017. The Emergency Services Telecommunications Authority (ETSA) accepted the resignation and advised Ms Wilkinson that she was no required to work out her notice and her employment ended on 19 September 2017.

[2] On 12 November 2017 Ms Wilkinson lodged an unfair dismissal application. On 13 November 2017 she advised that she intended lodging a general protections application. She was told that when it had been lodged she would be contacted about discontinuing her unfair dismissal application.

[3] On 13 November 2017 Ms Wilkinson lodged a general protections complaint with the Fair Work Commission. As such she did not lodge her application within 21 days of the date of the dismissal.

[4] On 15 November 2017 Ms Wilkinson discontinued her unfair dismissal application.

Multiple applications

[5] Section 725 of the Act provides that a person who has been dismissed must not make an application or a complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of the other sections applies.

[6] At the time of making her FWC general protections application (s.727) Ms Wilkinson had made an unfair dismissal application (s.729). At the time of making her FWC general protections application her unfair dismissal application had not been withdrawn or failed for want of jurisdiction or failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

[7] Consequently the FWC general protections application was not able to be made. That is sufficient to defeat Ms Wilkinson’s claim.

[8] However there is nothing to prevent Ms Wilkinson from making a fresh application as her unfair dismissal application has been discontinued. Given my view about this application I propose to deal with the application for an extension of time. This may avoid the need for further costs to be incurred by the parties.

The extension of time application

[9] The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[10] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[11] Ms Wilkinson said that she was unaware of the 21 day time limit for lodging her application. Further she said that on 20 September 2017 she spoke to a representative of ESTA about her resignation and she was told that there would be an investigation. She said she was told to keep the matter confidential. She said she contacted this person a month later to find out what was happening and received no reply. Ms Wilkinson said that she then lodged her application however the Commission’s records disclose that the application was not filed until 13 November 2017 nearly 2 months after the dismissal.

[12] The evidence disclosed that Ms Wilkinson had legal representation by at least 19 October 2017. Her explanation of why she did not lodge after this date was that she was working out what she should do. Ms Wilkinson also made reference to her mental state. No medical evidence was provided to the Commission. It is also clear that her mental state did not prevent her from seeking legal advice or communicating with ESTA. I cannot be satisfied on the evidence before me that Ms Wilkinson’s medical condition provided a reasonable explanation for the delay in lodging her application.

[13] That Ms Wilkinson was unaware of the time limits is not unusual. Further that she sought an internal resolution of her complaint is also not unusual. Once it was clear in October 2017 that there would be no internal resolution Ms Wilkinson needed to act promptly. She has not provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[14] Ms Wilkinson did not dispute the dismissal because she resigned her employment. However she did send a detailed letter setting out her reasons why she resigned. She did not put ESTA on notice that she intended making a general protections claim. I consider this criterion to be a neutral consideration.

(d) prejudice to the employer (including prejudice caused by the delay);

[15] There was no submission and no evidence that there would be any prejudice to the employer. While a lack of prejudice alone is not sufficient to find that there are exceptional circumstances, it weighs in favour of such a finding.

(e) the merits of the application;

[16] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit." 3

[17] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[18] In this matter it is not clear how Ms Wilkinson says ESTA breached the general protections provisions of the Act. When asked about this at the hearing she said she was forced to resign because she was bullied at work and ESTA failed to act on her complaints.

[19] For Ms Wilkinson’s claim to succeed she will need to establish that she was dismissed and she will need to set out why she says this dismissal was in breach of the general protections provisions of the Act. If she makes out these elements of her case then ESTA will need to establish that the reason alleged by Ms Wilkinson was not one of the reasons she was dismissed.

[20] Ms Wilkinson says she resigned because she was bullied at work and ESTA failed to act on her complaints.. Ms Dowling gave evidence that in conversations with her Ms Wilkinson said that the decision to resign was her decision and Ms Dowling said that ESTA did not do anything to force Ms Wilkinson to resign. Further Ms Dowling denied that ESTA failed to act on her complaints and if Ms Wilkinson was unhappy with the outcome she could have escalated the complaint. Ms Wilkinson denied she was told that she could escalate her complaint.

[21] Whilst I am unable to determine the factual disputes that exist and whilst I accept that properly advised Ms Wilkinson may be better able to articulate her claim, I am not satisfied on the evidence before me that the merits of the claim weigh in favour of a finding of exceptional circumstances. I consider this to be a neutral consideration.

(e) fairness as between the person and other persons in a similar position.

[22] There was no evidence or submissions that there were any persons in a similar position. I consider this to be a neutral consideration.

Conclusion

[23] I am satisfied that Ms Wilkinson’s general protections application was not validly made because it was made before she discontinued her unfair dismissal application.

[24] Even if this were not the case, I am not satisfied that there are exceptional circumstances. Apart from a lack of prejudice to the employer none of the other factors support a finding of exceptional circumstances. A lack of prejudice to the employer alone does not warrant a finding of exceptional circumstances. Accordingly Ms Wilkinson’s application for an extension of time is dismissed.

[25] An order giving effect to this decision will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A. Wilkinson for herself.

C. Dowling for the Respondent.

Hearing details:

2017.

Melbourne, by telephone:

January 25.

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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