Applicant v Workskil Australia
[2018] FWC 3132
•4 JUNE 2018
| [2018] FWC 3132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Applicant
v
Workskil Australia
(C2018/2400)
| Commissioner Platt | ADELAIDE, 4 JUNE 2018 |
Application to deal with contraventions involving dismissal - extension of time – application dismissed.
Summary
The Applicant has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Workskil Australia (Workskil) on 16 March 2018 in contravention of the general protections provisions of the Act. The contravention was the alleged improper reliance by the employer on the Applicant’s criminal record. I have determined that it is appropriate in the circumstances to restrict the publication of the name of the Applicant and with the consent of the parties make an order under s.594 of the Act to this effect.
This application was lodged on 7 May 2018.
The application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:
“This application is over the 21 days due to [sic] I had been dealing with [name redacted] at Equal opportunity commission (sic). [phone number redacted] going for the spent conviction but was later advised conviction was not spent as I was led to believe so I did not have a case within this department. They gave me your details to follow through with.”
Workskil filed a form F8A Employer Response on 10 May 2018 and raised a jurisdictional objection on the basis that the application was made out of time.
On 14 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 28 May 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties who were directed to provide an outline of argument of their respective positions by 22 May 2018.
Submissions
The Applicant provided written submissions which are relevantly summarised as follows:
· On 24 January 2018 the Applicant was advised by Workskil that she had been successful through the recruitment process in gaining a position as a consultant.
· On 25 January 2018 the Applicant received a contract of employment which she signed and returned by email to Workskil on the same day.
· Workskil indicated to the Applicant that she was to commence her induction program on 19 March 2018.
· In around February 2018 Workskil conducted a Police Check of the Applicant’s criminal history.
· On 21 and 26 February 2018 Workskil contacted the Applicant to advise that they were still waiting for the results of the Police Check to be returned.
· On 2 March 2018 the Applicant was advised by email that Workskil had received the results of the Police Check.
· On 12 March 2018 Ms Wallace (HR Manager) telephoned the Applicant and requested a copy of the Court transcripts relevant to her criminal conviction.
· On 16 March 2018, Ms Curcic (People and Culture Manager) telephoned the Applicant for further information around the circumstances which led to the criminal convictions, specifically the conviction in relation to unlawful wounding. The Applicant highlighted that it was a spent conviction and explained to Ms Curcic that she had been a victim of domestic violence and had been attempting to protect herself when the incident occurred. The Applicant advised that she had been sentenced to a one year good behaviour bond.
· On 16 March 2018, the Applicant was contacted a second time by Ms Curcic and advised that her employment had been terminated and that she would no longer commence her induction program on 19 March 2018.
· On 18 and 21 March 2018, the Applicant emailed Workskil confirming that the convictions were spent and querying why she had been asked to provide the transcripts if Workskil had determined to dismiss her before they had been received.
· The Applicant submitted that after the dismissal she contacted the Equal Opportunity Commission and the Geraldton and Moora Courts regarding her claim. The Applicant submits that she was attempting to obtain evidence that her two convictions were spent.
· The Applicant asserted that the Equal Opportunity Commission contacted her and advised that the conviction was not in fact spent, and that she could not make a claim through the Equal Opportunity Commission. The Applicant was advised to make a claim through the Fair Work Commission.
Workskil provided written submissions which are relevantly summarised as follows:
· Workskil submits that on 16 March 2018 it terminated the employment contract prior to the Applicant’s commencement date.
· On 25 January 2018, both parties signed the employment contract. Workskil submitted that Clause 18 of the employment contract stipulated that “it is a condition of employment that an acceptable National Police Certificate (“Police Check”)…is completed.”
· On 2 March 2018 Workskil received the Applicant’s Police Check and it identified five previous convictions.
· On 16 March 2018, Ms Dwyer (CEO) and Ms Curcic met to discuss the Applicant’s criminal history. Ms Dwyer and Ms Curcic reached the decision that the criminal history, most notably the conviction for drug possession in August 2015 and July 2016, posed a significant risk to Workskil’s clients, service delivery and reputation. Workskil noted that many of its clients had drug dependency issues.
· On 16 March 2018 Ms Curcic contacted the Applicant by telephone to further discuss the convictions.
· Ms Dwyer and Ms Curcic met again on 16 March 2018, and Ms Curcic advised that her conversation with the Applicant did not “allay her concerns” and it was decided that the Applicant’s contract would be rescinded on the basis that she had not met the requirements of Clause 18.
· On 16 March 2018 Ms Curcic contacted the Applicant and communicated to her that the decision has been made to terminate the employment contract. The Applicant expressed her unhappiness with the outcome of the decision.
· Workskil asserted that the Applicant lodged her application 52 days late.
· Workskil submitted that the reason for the delay in filing the application is not exceptional.
· Workskil agreed that the Applicant had contacted the Equal Opportunity Commission in relation to the spent conviction involving domestic violence. However, Workskil contends that it was the convictions in relation drug possession, not the unlawful wounding conviction, which led Workskil to terminate the employment contract.
· Workskil contends that the Applicant has failed to provide any indication as to why she chose to contact the Equal Opportunity Commission, she has not provided a timeline for her enquires nor is there any evidence that a claim was lodged.
· The Applicant contacted Ms Curcic by email on 18 & 21 March 2018 “setting out her unhappiness [in relation to the decision]” and advising she would take her case to “fair trading and equal and discrimination board (sic)”.
· Workskil submitted that due to the lengthy delay it will suffer prejudice, in that it would need to rely on oral evidence from its employees’ personal recollections and that this would entail significant work and time.
· Workskill asserts that the application is without merit. Workskil submits that criminal convictions are a relevant and a lawful basis in which employment decisions may be made in respect of. Particularly where the relevant convictions pose a risk to Workskil’s current clientele.
· Workskil further submitted that the terms of the employment contract enabled it to terminate the employment prior to the Applicant’s commencement as it was a condition of the contract that an acceptable Police Check be returned.
· Furthermore, Workskil contended that the Applicant failed to identify in her application that she was dismissed for any of proscribed reasons in Part 3-1 of the Act.
· It is submitted that Workskil approaches all employees or prospective employees on the same basis, namely, it requires all employees to return an acceptable criminal history check. Workskil asserts that it treated the Applicant no less favourably than other prospective employees in a similar situation.
· The Applicant’s circumstances do not give rise to exceptional circumstances which would warrant an extension of time.
A Hearing was conducted by way of telephone conference on 28 May 2018. A sound file record of the telephone conference was kept. The Applicant was self-represented and Mr Paul Hayes (Workskil General Counsel) represented Workskil.
The Applicant reiterated her submissions, as did Workskil.
The Hearing was adjourned to allow the Applicant time to provide copies of the communications between her and the WA Equal Opportunity Commission (WA EOC). The Applicant did not provide this information but provided an email from a Conciliation Officer which indicated that the Applicant lodged a complaint with the Equal Opportunity Commission on 28 March 2018 and was providing documents to support that complaint until 20 April 2018. On 30 April 2018 the WA EOC advised the Applicant that her convictions were not spent and that she intended to withdraw the complaint. The Applicant provided an email from her to the WA EOC withdrawing the complaint on 14 May 2018.
In addition the Applicant provided copies of emails between her and Workskil regarding the Court transcripts as well as a copy of the transcript between the WA Police and herself on 12 July 2016 where it appears the Applicant pleaded guilty to the simple possession of methamphetamine and paraphernalia and a fine was imposed.
After further consideration the Commission invited the parties to provide further submissions on the location of the proposed employment, which State Discrimination laws applied and the basis upon which the Applicant asserted that the dismissal was in breach of the Act. The matter was listed for Hearing on 31 May 2018.
Workskil provided a supplementary submission which advised that the Applicant was to be employed in Geralton, Western Australia, that the Equal Opportunity Act 1984 (WA) applies and that Act does not make it unlawful to make employment decisions based on a person’s criminal record, that the reasons for dismissal was not prohibited by s.351 of the Fair Work Act 2009 (Cth) and the provisions from s.340 to 356 of the Act are not enlivened. Workskil contended that s.18 of the Spent Convictions Act 1988 (WA) which makes it unlawful for an employer to discriminate on the basis of a spent conviction did not have applications because the relevant convictions were not spent.
Workskil contended the claim had no merit and was doomed to fail.
The Applicant contacted my Associate on the morning of 31 May 2018 and advised she would not be in a position to attend the Hearing and informed the Commission that she stopped dealing with the WA EOC as she determined her conviction was not spent. She was not able to articulate the basis for her claim and contended that the facts underlying her drug conviction did not warrant a dismissal. The Applicant advised she was suffering from depression after the dismissal.
The Applicant was invited to seek an adjournment but advised she would rely on the material provided.
Applicable Law
Section 366 of the Act relevantly states:
“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).
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
It is not in dispute (for the purposes of the jurisdictional Hearing) that the employment contract was entered into in Western Australia on 25 January 2018 and terminated on 16 March 2018. This application was made on 7 May 2018.
This general protections application by the Applicant was made 31 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
The Applicant complained to Workskil that her dismissal was unjust on 18 and 21 January 2018.
The Applicant contacted the WA EOC on 28 March 2018 (12 days after the dismissal) and lodged a complaint based on her belief that her dismissal was in breach of the Spent Convictions Act 1988 (WA). On 30 April 2018 the Applicant became aware that her conviction was not spent.
The Applicant has not explained the delay between 16 March 2018 and 28 March 2018 although this could be consistent with her seeking more information about her criminal record.
More importantly the Applicant has not explained the delay between finding out her conviction was not spent on 30 April and lodging this claim 7 days later.
That the Applicant has failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters.[2]
I accept that the Applicant was distressed as a result of the dismissal however, it is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd.[3]
In my view the Applicant has not explained the whole of the delay particularly that period after she was aware her claim via the WA EOC was to be withdrawn.
Any action taken by the person to dispute the dismissal
The Applicant’s complaints to Workskil and the WA EOC are evidence that she disputed the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in this matter is considerable, however whilst I accept it presents prejudice to Workskil, it is not determinative in this matter.
The merits of the application
In terms of the merits of the application, the portion of the Form F8 application which details the breach relied upon was not completed. There does not appear to be any breach of the Western Australian discrimination legislation. The Applicant was invited to, but was unable to articulate any basis for a breach. Workskil contended that the Applicant’s case is devoid of merit. On the preliminary information before me, I am unable to see how the Applicant’s claim has any merit and accordingly I have regarded the merits as a factor which weighs against the granting of an extension of time.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am not satisfied that the Applicant’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[4] reflecting this decision will be issued.
COMMISSIONER
Appearances:
The Applicant.
Mr P Hayes on behalf of the Respondent.
Hearing details:
2018.
Adelaide:
28 May.
<PR607653>
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 901.
[3] [2011] FWA 673.
[4] PR607654.
Printed by authority of the Commonwealth Government Printer
0
5
0