Angel Mayfield v Dob Enterprises Pty Ltd T/A MBC Nursing Agency + MBC Recruitment

[2019] FWC 7333

[2019] FWC 7333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Angel Mayfield
v
DOB Enterprises Pty Ltd T/A MBC Nursing Agency + MBC Recruitment
(C2019/4573)

DEPUTY PRESIDENT YOUNG MELBOURNE, 23 OCTOBER 2019

Application to deal with contraventions involving dismissal – extension of time.

[1] This decision concerns an application by Ms Mayfield under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] Ms Mayfield was employed by the Respondent company in the position of casual on-hire Care Support Worker. Ms Mayfield’s employment ended on 24 June 2019. Her application was not lodged until 24 July 2019. The period of 21 days ended at midnight on 16 July 2019 and the application was therefore lodged 8 days out of time. Ms Mayfield seeks that the Commission allow a further period for the application to be made. The company opposes the grant of an extension of time.

[3] On 12 August 2019, I issued directions for the parties to file materials and listed the matter for hearing at 10.00 am on 10 October 2019. Attached to that email was the Applicant’s Outline of Argument template document (Template Document). Ms Mayfield did not file any material in accordance with these directions.

[4] On 3 September 2019 my associate wrote to Ms Mayfield noting that she had not filed any material and requesting she do so as a matter of urgency and noting that if she did not file any material, the matter would proceed based on the materials provided in her application and any submissions filed by the Respondent. The Template Document was again provided to Ms Mayfield with that email. On 6 September 2019 Ms Mayfield wrote to chambers stating that she filed her argument “up front”.

[5] On 9 September 2019 my associate again wrote to Ms Mayfield noting should she not file any submissions or further material in relation to whether the Commission ought grant an extension of time for the application pursuant to section 366(2) of the Act, she would not be able to rely upon any material at the hearing except for that provided in her application. Ms Mayfield did not respond. The Template Document was again attached to this email, along with a copy of section 366 of the Act.

[6] On 17 September 2019 my associate wrote a further time to Ms Mayfield noting that she had not provided any further material other than her initial general protections application and noting, in particular, that she had not filed any material in support of her application for an extension of time. My associate again explained that in the absence of any further material being filed, the Commission would proceed to determine her application for an extension of time on the basis of the material the Commission currently had before it.

[7] On 3 October 2019 Ms Mayfield called my chambers and confirmed that she would not be filing any materials beyond her application.

[8] On 10 October 2019 I conducted the proceeding by way of determinative conference. Ms Mayfield appeared on her own behalf and gave evidence. Mr Kay appeared on behalf of the Respondent. At the commencement of the determinative conference, I advised Ms Mayfield that the documents before the Commission were limited to her application and two supporting documents, being references from a Mr Coleman and a Mr Brookhouse. Ms Mayfield confirmed that this was all the material that ought be before me (Filed Documents).

Consideration

[9] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 1

[10] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 2 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3

[11] Under section 366(2) of the Act, the Commission may allow a further period for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.”

Reason for the delay

[12] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.6 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.7

[13] In her application Ms Mayfield says that the reason for the delay in lodgement was that “[she] thought it was 21 working days, weekends not included.” 8At the determinative conference, Ms Mayfield relied on her misunderstanding of how the lodgement period is calculated to explain the delay and said further that 21 days was not a sufficient period when someone is dealing with the challenges of having lost their employment and income. She also gave evidence under cross examination that she was unaware of the 21 day timeframe for lodgement until the week before she lodged the application. It is well established that ignorance of one’s rights or the time frame for lodgement is not an exceptional circumstance.9 Accordingly, neither Ms Mayfield’s misunderstanding as to how the lodgement period is calculated nor her ignorance of the timeframe provide an acceptable explanation for the delay in lodgement. As to Ms Mayfield’s assertion that 21 days is an insufficient period for lodgement of an application, that is the period provided for under section 366 of the Act and, accordingly, is that which applies. It is apparent the Parliament has a different view to that of Ms Mayfield.

[14] Notwithstanding the correspondence sent to Ms Mayfield regarding her failure to comply with the directions made in this matter to file material, her verbal and written confirmation that she did not wish to file any further material and her confirmation at the commencement of the determinative conference that the Filed Documents comprised all the materials that ought be before the Commission, in addition to the reasons above, at the determinative conference Ms Mayfield advanced a multitude of other reasons for the delay in lodgement. Ms Mayfield asserted that these other reasons had been detailed in extra materials she says she filed “months ago”. She says she filed these extra materials in both the Sydney and the Canberra registry to ensure they were received and because of this she did not file any further materials.

[15] Ms Mayfield was very unclear as to where she filed these materials, believing it to have been with “Fair Trading”. She could not provide details of the email address to which these materials were sent. No such extra material was filed by Ms Mayfield with the Commission in this matter and as set out above, multiple email communications between the Commission, my chambers and Ms Mayfield occurred prior to the determinative conference. Accordingly, Ms Mayfield had access to the correct email address for the Commission and my chambers and, indeed, corresponded using those addresses.

[16] A search of the Commission files reveals that Ms Mayfield initially filed an unfair dismissal application on 18 July 2019, lodging materials in both the Sydney and Canberra registry. Following advice from the Commission that Ms Mayfield was not protected from unfair dismissal, that application was discontinued via email on 23 July 2019 (and subsequently by a notice of discontinuance) and a general protections application filed the following day. From this, I consider it more likely than not that the extra material to which Ms Mayfield refers was, in fact, material filed on 18 July 2019 in relation to her earlier, discontinued, unfair dismissal application. Ms Mayfield says she was confused and believed she had already filed all her material and that the two proceedings were linked. It is difficult to see how that confusion could have continued in light of the repeated correspondence from my chambers to the contrary, including directions to file such material. Ms Mayfield gave evidence that she had not opened the email containing the directions issued on 12 August 2019. That Ms Mayfield chose not to open some of the correspondence sent to her by the Commission is not to the point. She was directed to file any material upon which she sought to rely and given ample opportunity to comply with those directions. She did not do so. Accordingly, the only materials the Commission has before it in this matter are the Filed Documents.

[17] As set out above, other reasons for the delay advanced by Ms Mayfield at the determinative conference were manifold. Many went to matters that arose from the reduction in and ultimate cessation of the hours of work offered to her by the company in the period preceding the termination of her employment, her disputation of this reduction and cessation, the alleged lack of response from the employer as to these matters and the financial difficulties she says this reduction and ultimate cessation in hours of work offered occasioned. Given these matters occurred prior to the termination of her employment they cannot provide an acceptable explanation for the delay. Further, even if they could, no evidence to support those matters was provided. Ms Mayfield also says that she was suffering severe financial distress and as a result she couldn’t afford to purchase data so had limited access to the internet, had to walk some 8 kilometres to use the computers at the local library as she could not afford to buy fuel for her car, pay its registration or have it repaired and generally was being “rammed into the ground” from the financial distress arising from the termination of her employment. However, she provided no evidence in support of any of these matters. She also says she suffered extreme hurt.

[18] I accept that Ms Mayfield did suffer distress following the termination of her employment. However, this is both a common and understandable reaction. Ms Mayfield did not provide any evidence of this extreme hurt or that it prevented her from lodging the application in time. Finally, Ms Mayfield says she contacted Fair Trading (whom I consider is more likely to be the Commission) regarding her work situation and believed that this had commenced action. However, she also gave evidence that she made this contact whilst still employed by the company, prior to her termination. In those circumstances, it is difficult to see how she could have considered that she had commenced action in relation to the termination of her employment as it had not yet occurred. Further, she subsequently lodged an unfair dismissal application commencing that proceeding.

[19] Accordingly, in my opinion, in light of all of the above, Ms Mayfield has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[20] Ms Mayfield’s evidence was that she complained to her recruitment agency (ETC) about the company’s conduct both prior to and after her dismissal. She says that at some point ETC variously advised her to seek legal advice, to speak with her member of parliament and assisted her to file her unfair dismissal application. However, she did not give any evidence of any steps actually taken to dispute her dismissal, other than lodging her unfair dismissal and subsequent general protections applications. This weighs against the granting of an extension of time.

Prejudice to the employer

[21] I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted and the company concede that no such prejudice arises. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I therefore find this to be a neutral factor in the present case.

Merits of the application

[22] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[23] In her application, Ms Mayfield identified every provision of Part 3-1 of the Act as being engaged, other than section 352. 10 At the determinative conference she gave evidence that she “ticked everything” as being applicable as she didn’t know what they meant. She also gave evidence that she says the company has contravened Part 3-1 because it treated her badly and unprofessionally, treated her disrespectfully, terminated her for no good reason and the company’s conduct was ruining people’s lives.

[24] Earlier in her evidence Ms Mayfield alleged that she had been subject to some sort of adverse action, which for present purposes I am prepared to assume is constituted by the termination of her employment (noting that this was not clearly articulated by Ms Mayfield) because of her race or national extraction. Ms Mayfield says she grew up in the United States of America and has an American accent. She says that negative comments about her being a “California girl” were made by a company’s representative, Mr Johnson, and that this may have been a reason for her treatment.

[25] The company says that the reason for the termination of Ms Mayfield’s employment was the irreparable breakdown in the employer/employee relationship 11 and relies upon the four matters articulated in the letter of termination provided to Ms Mayfield on 24 June 2019.12 Broadly speaking, those matters may be categorised as misconduct. It says further that the application is entirely misconceived.

[26] In my opinion, other than the allegation of discrimination, the matters relied upon by Ms Mayfield do not identify any matters which could, even arguably, found a claim under Part 3-1 of the Act. Accordingly, on the basis of the material before me, Ms Mayfield’s claim appears to be weak, at best. This weighs against the granting of an extension of time.

Fairness as between the person and another person in a like position

[27] Applications to extend time generally turn on their own facts. The parties did not bring to my attention any particular cases or other persons that may, properly considered, be relevant to this issue. I find the question of fairness between Ms Mayfield and other persons in a like position to be a neutral factor.

Conclusion

[28] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[29] Having regard to all the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.

[30] Accordingly, I decline to grant an extension of time under section 366(2). Ms Mayfield’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A Mayfield on her own behalf

J Kay of Falvey Kay Lawyers for the Respondent.

Hearing details:

2019.

Melbourne:

October 10.

Final written submissions:

Applicant, 25 July 2019

Respondent, 23 September 2019

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 8   Form F8 General protections application involving dismissal, question 1.4

 9   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 10   Form F8 General protections application involving dismissal, question 3.2

 11   Respondent’s outline of argument: Extension of time, annexure A

 12   Form F8A Response to general protections application, question 5.1