Belinda Grant v CSL Limited T/A Bio CSL

[2015] FWC 135

[2015] FWC 135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Belinda Grant
v
CSL Limited T/A Bio CSL
(C2014/7823)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 JANUARY 2015

Application to deal with contraventions involving dismissal; application made outside the time prescribed under s.366; representative error said to be reason for delay; exceptional circumstance; time within which to make an application under s.356 extended; dispute referred to conference

Introduction

[1] Ms Belinda Grant (Applicant) was employed by CLS Limited (Respondent) until the termination of her employment on or about 27 March 2014. The Applicant has applied to the Fair Work Commission (Commission) under s. 365 of the Fair Work Act 2009 (Act) for it to deal with a general protections dispute involving a dismissal. The application was lodged on 18 November 2014 and concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant on 27 March 2014, in contravention of sections 340 and 351 of the Act. As the application is made outside the prescribed period within which such applications may be made, the Applicant asks the Commission to allow a further period in accordance with s. 366(2) of the Act.

Background

[2] The Applicant first commenced employment with the Respondent on 14 August 1995. At that time the Applicant was located in Sydney. In July 2000 the Applicant relocated to Melbourne to take up a position of State Sales Manager – Victoria Tasmania Pharmaceuticals with the Respondent.

[3] In or about July 2012 the Applicant commenced a period of maternity leave. At the time the maternity leave commenced the Applicant had intended to return to work on 5 August 2013. The Applicant is a single mother.

[4] On or about 12 April 2013 the Applicant gave notice to the Respondent that she proposed to return to work on a graduated basis commencing two days per week for the period 5 August 2013 to 13 January 2014. Thereafter the Applicant proposed to work four days per week. The Applicant proposed a number of alternatives, but in essence she was seeking flexible working arrangements upon her return to work from maternity leave.

[5] Variously between 12 April 2013 and until the date of her dismissal, the Applicant and the Respondent engaged in correspondence and held meetings concerning, inter alia, the Applicant’s return to work arrangements and extension of the Applicant’s period of maternity leave.

[6] On or about 19 December 2013 the Applicant made a complaint to her employer about conduct that she had experienced, which she alleged was discrimination and about that which she regarded as an unreasonable response to her return to work from maternity leave on flexible work arrangements. The Respondent investigated the Applicant’s complaint. The outcome of the investigation was communicated to the Applicant during a meeting with the Respondent on 20 January 2014 and in correspondence from the Respondent to the Applicant also dated 20 January 2014.

[7] As to the request for flexible working arrangements, the Respondent maintained that it was necessary for the role carried out by the Applicant to be undertaken on a full-time basis as it was a business critical role. The Respondent required the Applicant to return to work at the conclusion of the extended maternity leave from 31 January 2014. The Applicant ultimately did not return to work on that day, as she was required to undergo surgery on 3 February 2014.

[8] Thereafter further discussions between the Applicant and the Respondent ensued about flexible work arrangements and a return to work. Ultimately the impasse between the Applicant and the Respondent remained that the Applicant wished to return to work on a four days per week basis and the Respondent maintained that it could not accommodate this because of the business critical nature of the role. Therefore the Respondent refused the Applicant’s flexibility request, it says on reasonable business grounds. The Applicant’s employment was terminated with effect from 27 March 2014. She did not return to work prior to her dismissal. The Applicant received a payment in lieu of notice and accrued entitlements on the termination of employment.

[9] There is some dispute about when the Applicant received notice. The Applicant said that she believed that she received notification of the termination of her employment on or about 3 April 2014. It was put by the Applicant that the termination of her employment did not take effect until she received notice. The Respondent’s evidence was that it had sent its letter containing the notice of termination by prepaid express post on 26 March 2014. It also led evidence that the letter was delivered by express post to the Applicant’s last known residential address on 27 March 2014. The Respondent’s evidence was also that by letter dated 3 April 2014, it sent to the Applicant an employment separation certificate also dated 3 April 2014. This may explain the Applicant’s recollection that she received notice of her dismissal on 3 April 2014. Ultimately I accept the Respondent’s evidence and am satisfied that the notice of termination was delivered to the Applicant on 27 March 2014 and that the employment ended on that day, but even if the Applicant’s version of events were correct, an extension of time to lodge an application under s. 365 of the Act is still required since that application was not lodged until the 18 November 2014.

[10] So far as this application is concerned, there is no dispute that the dismissal of the Applicant and Respondent amounted to adverse action taken by the Respondent within the meaning of s. 342 of the Act. The Applicant alleges that the adverse action was taken because she had exercised a workplace right, inter alia, that she had made a request for flexible work arrangements and that she had made a complaint or inquiry in relation to her employment in contravention of s. 342. The Applicant also alleges that the adverse action was taken because of her family or carer’s responsibilities in contravention of s. 351.

[11] On 22 April 2014 the Applicant made an application under s. 372 of the Act. Applications of that kind request the Commission to deal with a dispute concerning general protections matters involving adverse action which did not include a dismissal. The Respondent agreed to participate in a conference conducted by the Commission.

[12] On 22 May 2014 Commissioner Lee conducted a conference under s. 374 of the Act. The parties were unable to resolve the issues in dispute. At the conference the solicitors for the Applicant foreshadowed an application to amend the application made under s. 372 of the Act to an application brought under s. 365. An application to amend was subsequently made. The Respondent indicated that it did not oppose the application to amend but wished to oppose the amended 365 application on the basis that it was lodged outside the time prescribed by s. 366.

[13] The questions of amendment and extension of time were referred to me for determination. I issued directions for the programming of the matters. Subsequently the hearing of the amendment application was delayed pending the determination by a full bench of the Commission of which I was a member, of a similar question that was raised in Ioannou v Northern Belting Services Ptd Ltd. 1

[14] The application to amend came on for hearing before me on 17 November 2014. Ultimately it was not necessary to determine the amendment application as the Applicant agreed to discontinue her s. 372 application and to file a s. 365 application, which she did on 18 November 2014. This course was not opposed by the Respondent subject to its s. 366 objection.

[15] For its part the Respondent agreed that the delay which had occured in making the s.365 application since the initial s. 372 application, is satisfactorily explained by the Applicant’s belief that she could amend that application and that she took prompt and appropriate steps to do so. The Respondent also agreed that the delay is also satisfactorily explained by the need to await the outcome of the decision in Ioannou. In essence, the Respondent accepts that these reasons are acceptable reasons for the delay for the period following the initial s. 372 application and the making of the application under s. 365 on 18 November 2014. In my view these were appropriate and proper concessions for the Respondent to make and I accept that the explanation given for that period is an acceptable reason for the delay. That leaves for determination whether there are exceptional circumstances that would warrant the exercise of my discretion to allow a further period within which this application under s. 365 may be made.

Principles for allowing applications to be lodged outside the prescribed time limit

[16] The Applicant’s dismissal took effect on 27 March 2014. This application was made on 18 November 2014. The application should have been made within 21 days after the dismissal took effect. The Commission may allow a further period within which an application may be made. The discretion to allow a further period will only be exercised if the Commission is first satisfied there are “exceptional circumstances”, taking into account:

• The reason for the delay;



• Any action taken by the person to dispute the dismissal;



• Prejudice to the employer (including prejudice caused by the delay);



• The merits of the application;



• Fairness between the person and other persons in a position.

[17] It is clear, from the structure of s. 366(2) of the Act that each of these matters must be taken into account when assessing whether there exist “exceptional circumstances”. “Exceptional circumstances” are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances need not be unique, unprecedented or very rare.

Reason for the delay

[18] There must be an acceptable reason for the delay². The Applicant needs to provide a credible reason or credible reasons explaining the whole of the period that the application was delayed³. I have already earlier accepted for the reasons given that there is an acceptable explanation of the delay for the period after the original s. 372 application was made and the lodgement of the s. 365 application on 18 November 2014. The original application was lodged on 22 April 2014. A valid application under s. 365 should have been made by 17 April 2014.

[19] The Applicant has advanced the representative error as the reason for the delay.

[20] The representative error said to have been made is twofold. First the nature of the first application lodged by the Applicant and prepared by her solicitor was said to be contrary to the Applicant’s instructions that an application concerning an unlawful dismissal be made on her behalf⁴. That these were the instructions given by the Applicant to her solicitor is not contested and I accept that the original application prepared by the Applicant’s solicitor was not consistent with the instructions given and consequently necessitated that which followed and described earlier above. I accept that the Applicant was entitled to rely upon the advice given to her by her solicitor and should not be held responsible for the error that was made in the nature of the original application made to the Commission.

[21] Secondly, the Applicant lodged the original application on 22 April 2014. If that application properly engaged s. 365 of the Act, it would have been five days outside of the time prescribed. The Applicant’s solicitor gave evidence that after a period of absence from work due to influenza, she attended her office on 17 April 2014 to complete the application.⁵ The Applicant’s solicitor also gave evidence that she was convinced that the application was not due to be lodged until 22 April 2014 taking into account the intervening public holidays, that she communicated this to the Applicant, and that she accepts that she miscalculated the date on which the application (had it been a s. 365 application) was due.⁶ The Applicant’s evidence was that her solicitor did not speak to her about whether the Easter public holidays counted in the calculation of time. ⁷ However I do not regard this evidence as inconsistent with the evidence given by the Applicant’s solicitor because the Applicant also gave evidence that the solicitor did not tell her to file the application immediately upon its receipt from the Applicant’s solicitor (21 April 2014) and that she could “drop it into the Fair Work Commission in the morning on the Tuesday”⁸. On the totality of the evidence I accept that the Applicant relied upon the advice of her solicitor about when she could lodge her application. The Applicant’s solicitor said that she had calculated the date on which the application could be lodged to be Tuesday, 22 April 2014 and the Applicant said that her solicitor told her that she could drop of the application to the Commission in the morning of Tuesday (22 April 2014).

[22] The Respondent submitted that the Applicant was responsible for lodging the application. Whilst I accept that the Applicant acknowledged that she undertook responsibility for lodging the application, this misses the point about the nature of the representative error. The Applicant lodged her application shortly after receiving it from her solicitor on 21 April 2014. By that time, the time for make the application had passed, but the solicitor believed it had not. The Applicant had engaged a solicitor experienced in the relevant field and of high standing in the profession. The Applicant was entitled to rely upon advice given to her by her solicitor. The Applicant’s solicitor told by her that she could lodge the application on Tuesday, 22 April 2014. The Applicant solicitor gave evidence that she miscalculated the timeframe and that this was an error on her part. I accept that the Applicant relied on, and indeed was entitled to rely on the advice given to her by an experienced solicitor about the date on which she could lodge the application. That advice, as it turned out, was erroneous.

[23] The Respondent also submitted that the Applicant did not take a sufficient enough interest in the lodgement of the application because she did not take steps to ensure progress of the application between 6 April 2014 and 17 April 2014. Whilst I accept that, on the evidence this appears to be the case, ultimately, the reason for the delay was the erroneous belief held by the solicitor, the advice based on that erroneous belief given to the Applicant solicitor, and the Applicant’s reliance on that advice. This is not a case where the Applicant’s inactivity contributed to the delay. The Applicant’s solicitor was absent from work until 17 April 2014 because of influenza. The Applicant’s solicitor believed that the Applicant had until 22 April 2014 to lodge an application. That the Applicant could make her application by 22 April 2014 was communicated to the Applicant by the Applicant’s solicitor. The Applicant relied upon that advice. The advice was erroneous. There can be no suggestion in my view that the Applicant should be held responsible for the erroneous advice given in the circumstances of this case having regard to the experience and high standing in the profession of the solicitor that she engaged.

[24] I accept therefore, that there is an acceptable explanation for the delay of the whole of the period between 17 April 2014 and 19 November 2014. This is a factor that weighs in favour of the Applicant but it is only one of the matters to which regard must be had.

Any action taken by the Applicant to dispute the dismissal

[25] It seems common ground that apart from making the original application and this application, the Applicant did not take any step to dispute her dismissal after the date on which it took effect. There seems also little doubt that there has been a long period of ongoing disputation between the Applicant and Respondent about her return to work, the circumstances in which that return to work might be facilitated and that the Applicant engaged legal representation to further her interests. That the application was ultimately made should not have come as a surprise to the Respondent.

[26] In my view little store can be placed in the fact that the Applicant took no steps to dispute her dismissal on days which either fell on a weekend or were public holidays and in the circumstances, I regard this consideration is essentially neutral.

Prejudice to the employer (including prejudice caused by the delay)

[27] The Respondent accepts that it will not suffer any significant prejudice, beyond that which usually obtains from being required to respond to an application of this kind, should an extension be granted. The absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.

The merits of the application

[28] This is an application invoking the general protections provisions of the Act. On the face of the material available to me, it seems clear that the Applicant will be able to establish that she had, had exercised, or proposed to exercise, a workplace right. It is common ground that the dismissal of the Applicant on 27 March 2014 was adverse action taken by the Respondent against the Applicant within the meaning of the Act. The Applicant alleges that the adverse action was taken because she had, had exercised or proposed to exercise, a workplace right, and that adverse action was also taken in contravention of s. 351 of the Act. Given the terms of s. 361, it may readily be concluded that the Applicant’s application is not without merit. So much was conceded by the Respondent. Beyond this the allegations made by each of the Applicant and the Respondent are contested and in particular the central issue in dispute, that is the reason for the dismissal, is seriously contested and it is not practical in hearings of this kind, to conduct a full evidentiary hearing to determine merit. Moreover neither party sought to lead evidence going to merit. However the fact that the Applicant’s claim is not without merit weighs in favour of the Applicant.

Fairness as between the person and other persons in a like position

[29] Cases of this kind will generally turn on their own facts, however this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This Commission and its predecessor have consistently accepted that representative error for which an Applicant is held blameless, provides a basis for accepting that representative error causing delay is an acceptable explanation for the delay occasioned in bringing, relevantly this kind of application. Given my earlier findings about representative error, it seems to me that this consideration weighs in favour of the Applicant.

Conclusion

[30] The statutory time limitation applicable to the exercise of a person’s right to make a general protections dismissal related application is an expression of Parliament’s intention that rights must be exercised promptly within a particular time so as to bring about certainty. Time limitations seek to balance one person’s right to bring an action, against another person’s right to know with certainty that questions about actions that they have taken will be agitated within a particular period, otherwise that right is lost.

[31] I have earlier accepted that the representative error occasioned by the wrong application being drafted by the Applicant’s solicitor, the erroneous advice provided to the Applicant by her solicitor about the time within which such an application may be made and the delay occasioned by the need to apply to amend the original application, combine to provide an acceptable explanation for the delay in bringing the application under s. 365 of the Act. Given that the other factors to which regard must be had, are either neutral or weigh in favour of the Applicant, I am satisfied taking into account all of those matters that there are exceptional circumstances which warrant consideration of whether to exercise my discretion to allow a further period within which the Applicant’s s. 365 application may be made.

[32] Apart from addressing the specific matters in s. 366 of the Act, neither party pointed to any particular discretionary consideration that might be relevant in deciding whether to extend time. I am not aware of any consideration, which would weigh against the exercise of my discretion and having concluded that there are exceptional circumstances I am persuaded to exercise my discretion to allow the Applicant a further period within which to lodge her application.

[33] Accordingly I allow the Applicant until 18 November 2014 to make an application under s. 365 of the Act. An order to that effect is issued separately in PR559846.

[34] A conference will be conducted pursuant to s. 368 (2) for the purposes of dealing with the dispute. A notice of listing scheduling the conference will be issued separately.

DEPUTY PRESIDENT

Appearances:

S. Zeitz for the Applicant

E. MacDougal for CSL Limited

Hearing details:

Melbourne.

2014.

8 December

Final written submissions:

Applicant, 12, 23 December 2014

CSL Limited, 19 December 2014

 1   [2014] FWCFB 6660

2 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230]

3 See Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at [408] – [409]

4 Exhibit A4 at [5] and exhibit A1 at [5c]

5 Exhibit A4 at [8]

6 Ibid at [9] – [10]

7 PN 397

8 PN 399

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