Betty Fiamengo v Sorbent Paper Company Pty Ltd

[2020] FWC 3867

[2020] FWC 3867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Betty Fiamengo
v
Sorbent Paper Company Pty Ltd
(C2020/1191)

COMMISSIONER YILMAZ MELBOURNE, 28 JULY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 28 February 2020, Mrs Betty Fiamengo (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). She last worked for her employer in July 2018 before taking sick leave, annual leave and then filing a workers’ compensation claim. The Applicant’s dismissal took effect on 22 October 2019. This application is 108 days outside the 21-day limit.

[2] The Applicant lodged her general protections application against Asaleo Care Limited. The issue of the correct Respondent was subject to a preliminary conference and mention on 6 April 2020. The Respondent Asaleo Care Limited submitted that it was never the employer of the Applicant. It confirmed that the Applicant was employed by Sorbent Paper Company Pty Ltd (the Respondent) which was previously known as Asaleo Care Australia Pty Ltd until 8 April 2019. The Respondent tendered ASIC records and referred to the employee’s PAYG payment summaries and termination communication, thereby confirming the correct ABN for the employer of the Applicant.

[3] The Applicant was represented by her husband Mr Paul Fiamengo (the Applicant’s representative) who argued that the different ABN numbers do not legitimise the documents 1 and insisted that the Applicant was employed by Asaleo Care Limited.

[4] During the proceedings, the Respondent submitted that the Applicant previously filed an unfair dismissal claim on 12 November 2019 in which she named the Respondent, Sorbent Paper Holdings Pty Ltd as her employer. On 7 January 2020 in a conference before Deputy President Mansini the Applicant agreed to amend her application to reflect the correct employer, Sorbent Paper Company Pty Ltd. The unfair dismissal application was advanced until it was discontinued by the Applicant during a mention before Deputy President Masson on 7 February 2020, 4 days before the hearing. The Respondent submits that the Applicant was informed that any further application would be out of time. 2

[5] The Applicant was invited to substitute the Respondent’s name from Asaleo Care Limited with her former employer’s name. During proceedings the Applicant agreed to the amendment and I issued an order on amending the application to reflect Sorbent Paper Company Pty Ltd (Sorbent) on 9 April 2020.

[6] I listed the extension of time hearing for 25 May 2020. The Applicant was represented by her husband and the Respondent was granted leave to be legally represented. I also accepted an affidavit that had been filed and served that same afternoon from Mr Pill of Clayton Utz which responds to assertions and language used by the Applicant’s representative about Mr Pill and his colleagues. The Applicant’s representative’s document (filed and served on Friday 22 May 2020) submits that legal representation for the Respondent should be denied. 3

[7] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

Applicant’s submissions

[8] In relation to the dismissal, the Applicant submits she was employed by Sorbent from 6 November 1996 until her dismissal on 22 October 2019. She submits that the exact details of the termination of her employment are unclear because the workers compensation claim was settled in the Magistrate’s Court. The Applicant submits she did not agree that she would resign or have her employment terminated, however, the next day (after the Magistrate’s Court matter), at work, her supervisor informed the factory floor that she had resigned. 4 The Applicant attached a copy of her employment separation certificate that confirms the date of termination of employment as 22 October 2019 and the reason is listed as “other”, without any further information.5

[9] The Applicant’s Form F8 was amended to include a lengthy submission and the usual questions contained in the form removed. It is difficult to accurately record the grounds and sections of the Act relied on relating to the alleged contravention of the general protections provisions as neither the Applicant or the Applicant’s representative clearly articulated it and the Form F8 is in parts incoherent.

[10] The Applicant submits that her letter of complaint dated 26 November 2015 against her supervisor for contacting her at home while her family were all asleep, resulted in a number of adverse actions. It is submitted that she informed her co-workers that she would be absent and questions why her supervisor called her at home when he should have been advised by her co-workers. She submits her complaint resulted in adverse action including:

•  After her complaint, she knew she would be monitored and she describes conduct towards her as victimising. An example is the monitoring of time she took for toilet breaks and time spent in the hut;

•  She was allegedly demoted from level 5 to trainee machine operator on the line;

•  She alleges her pay rate was adjusted unilaterally and this is reflected in her payslip;

•  She was warned for being a few minutes late;

•  She was reprimanded for not wearing safety glasses;

•  She was blamed for errors even when it was not her fault;

•  Photographs were taken of her without her authority which she describes as an invasion of privacy and made her feel unsafe; and

•  She was given a final warning for aggressive behaviour and sleeping on the job. 6

[11] The Applicant submits that she takes objection to being labelled as dishonest, the third and final warning and the photographs that were taken of her. Her criticism of the employer included taking photographs without her permission and making her feel unsafe, especially because they would not admit to who took the photographs, the final warning was in breach of the enterprise agreement which covered her employment because a previous warning was taken into consideration and it should not have been, no adequate explanation was given for her demotion and change to her rate of pay, she did not give permission to be transferred to the new employer, the Respondent’s warnings were petty and disproportionate to her contribution to the workplace, and the reason for her termination of employment remains unanswered as other employees continued to work while subject to injuries covered by workers compensation.

[12] The Applicant submits the contraventions of the general protections provisions relate to:

•  S.340 Protection of Workplace Rights;

•  S.343 Coercion- “material was not evidence, it was a weapon used to try and get the applicant to submit to punishment”. 7 This appears to relate to the photographs of the Applicant sleeping; and

•  S.345 Misrepresentation - The Applicant alleges complaints made against her are to deflect her complaints.

Respondent’s submissions

[13] The Respondent opposes the extension of time and submits that the Applicant did not:

•  Identify any exceptional circumstances;

•  Does not provide an acceptable explanation beyond the 21 days;

•  Provides no explanation for the delay after 7 February 2020 (mention before the hearing); and

•  The application is substantially without merit. 8

[14] The Respondent filed and served in addition to its outline of argument and submissions, affidavits of Mr James Alexander Daff and Ms Anna Pagotto, a chronology of relevant historical dates, and attachments to the affidavits that include the third and final warning to the Applicant, transcript before Commissioner McKinnon, various correspondences and material relating to the unfair dismissal application.

[15] The Respondent submits an investigation in mid-2018 into complaints that the Applicant was abusive and aggressive, and in relation to evidence of photos that the Applicant was found sleeping at work on 7 occasions, resulted in a third and final written warning as an alternative to termination. 9

[16] On 9 July 2018, after receipt of the warning, the Applicant ceased work and continued her absence for 15 months until her termination of employment. This absence commenced with sick leave, then annual leave and unpaid time off work. It is also during this period of absence that she lodged a workers’ compensation claim that was rejected in the Magistrates' Court on 9 September 2019. 10

[17] A dispute challenging her warning was listed for hearing before Commissioner McKinnon on 5 February 2019. Halfway through the Applicant’s cross examination, she discontinued the matter. 11

[18] The Applicant filed an unfair dismissal application on 12 November 2019. The application failed to resolve in a member assisted conciliation before Deputy President Clancy. During the mention before Deputy President Masson on 7 February 2020, the Applicant indicated she would consider filing a general protections application and withdraw her unfair dismissal application.

[19] The Respondent submits that Deputy President Masson informed the Applicant that any application would be out of time and therefore would be subject to a hearing for an extension of time. 12 Later during the mention proceeding, the Applicant indicated that she was withdrawing her application. This occurred 4 days before the scheduled arbitration

[20] The Respondent submits that the Applicant was aware of the risks of filing an out of time general protections application when she chose to withdraw her unfair dismissal application.

[21] The Respondent submits the Applicant has a history of various applications against the company including a dispute in mid-2018 before Commissioner McKinnon, a rejected workers compensation claim, an unfair dismissal application and her application to the Fair Work Ombudsman for support to obtain the payment of severance pay. 13

[22] The Respondent refers to the time and cost expended in responding to the various applications including additional proceedings when the Applicant failed to correctly record the employer entity in her applications.

Consideration

[23] General protections applications involving dismissal must be made within 21 days. This application is 108 days late.

[24] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[25] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)¹⁴ where it was held that:

“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 regular occurrence, even though it can be a on 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.”15

[26] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2) of the Act.

The reason for the delay

[27] The Applicant submits she lodged her unfair dismissal application on advice of her lawyer at the time and on “advice” received from the Fair Work Commission that the Form F2 was appropriate. The Applicant indicated that she understood that a s.365 application is different to an unfair dismissal application. She submits the unfair dismissal application was filed on time and at the time of the dismissal, she submits the reason for her dismissal was unclear. 16 The Applicant submits that while in the Commission before a member, it became apparent that the issue in dispute was whether she had the capacity to meet the inherent requirements of the job.17

[28] The Applicant submits that the circumstances around the termination of employment was confusing because it was unclear if she resigned or had been dismissed. Following the Magistrates’ Court matter, the parties engaged in negotiations over the terms to sever the employment relationship after the Applicant sought a Centrelink Separation certificate to claim unemployment benefits. These negotiations failed to achieve a consensual agreement. 18 The Respondent submitted as did the Applicant, copies of the email correspondence (namely 26 September 2019 and 18 October 2019) from the Applicant requesting payment of severance payments.

[29] Correspondence from Ms Pagotto, HR Manager, on 22 October 2019, confirms the termination of employment. This correspondence clearly states that termination of employment is effective 22 October 2019, that the Applicant would receive payment of entitlements including annual leave, long service leave, sick leave, notice plus a Centrelink Employment Separation Certificate. The letter confirms no severance payment is payable. This letter confirms a termination of employment at the initiative of the employer and it is unambiguous.

[30] In respect of the reason for the delay between the withdrawal of the unfair dismissal and the filing of the general protections application (a period of 21 days) the Applicant’s representative submits he had to restructure the application while faced with an unwell wife, the care of their two children and “he did the best he could”. 19

[31] In addition, the Applicant’s representative submits he tried to obtain legal representation, but no-one would assist.

[32] The Respondent submits that the Applicant failed to provide a reasonable explanation for the delay and the reasons given cannot be characterised as exceptional circumstances. 20

[33] The Applicant contends that the unfair dismissal application was made in error, and suggests the error was due to legal advice from her representative at the time, including advice from the Commission. No evidence or credible explanation was forthcoming to substantiate the argument of representative error or explain why a general protections application was more appropriate than an unfair dismissal application.

[34] The Applicant provided no evidence of representative error, or to support the submission relating to her illness or caring responsibilities that prevented the filing of the application on time.

[35] The actions of the Applicant are relevant to this consideration and the evidence shows that there was a further 21-day delay after the mention with Deputy President Masson. Further, it is relevant that the unfair dismissal application was subject to a conciliation conference and a member assisted conciliation prior to the mention taking place 4 days before the scheduled hearing. No explanation was given when the Applicant realised the error and the explanation for the 21-day delay from withdrawal of the unfair dismissal is not a credible explanation. None of the reasons for delay advanced by the Applicant are exceptional. There was no evidence to support the submissions and the Applicant is not blameless in the delay.

[36] I do not find this consideration weighs in the Applicant’s favour.

Steps taken to dispute the termination

[37] The steps taken by the Applicant to challenge her warnings and termination of employment through proceedings before this Commission are well documented. The Applicant further submits a number of emails were forwarded to the Respondent that went unanswered. 21

[38] The Respondent submits the Applicant disputed her dismissal through various proceedings in addition to seeking relief for severance payment through the Fair Work Ombudsman.

[39] The Respondent was aware of the Applicant’s grievance in having her employment terminated. However, the Respondent submits that this consideration is neutral and should not be given substantive weight.

[40] I consider that the Applicant has satisfied this consideration.

Prejudice to the employer

[41] The Applicant did not satisfactorily address this consideration.

[42] The Respondent provides evidence that the Applicant filed a number of claims then withdrew them, and in at least 2 applications she has cited the wrong employer; these actions have added unnecessary cost to the Respondent. Further, the Respondent gives evidence that 2 key witnesses are not available, one has taken maternity leave and the other that had carriage of the unfair dismissal application had left the employ of the Respondent.

[43] Taking into consideration the historical evidence of multiple applications against the Respondent and the failure of the Applicant to bring those matters to finality, in my opinion is relevant to the matter of prejudice. Further, the unavailability of key witnesses coupled with past actions by the Applicant has added complexity and cost which is a consideration regarding prejudice to the Respondent. On this basis I find this consideration does weigh in the Respondent’s favour.

Merits of the application

[44] The Applicant submits that the warning given to her by the Respondent did not comply with the company’s EBA, her position and rate of pay was adjusted without her agreement and that no reason was given for this despite her efforts to get an answer, and her sick leave and annual leave was cut short.

[45] The Applicant asserts that labelling her as dishonest and photographs taken of her “sleeping” are in breach of her rights. She submits she remains in dispute with the Respondent because she has been labelled a liar, lazy and other things, therefore she needs to clear her reputation. 22 She submits that she was never given a reason for her termination of employment and that her queries concerning her employment remain unanswered.23

[46] The Respondent submits the application is without merit. The Respondent submits that the Applicant relies on a complaint she made in 2015, but this is irrelevant to the actions taken by the employer to terminate her employment.

[47] The Applicant did not work for 15 months after receiving her warning. In the 15-month period the Applicant took leave, then applied for workers compensation and finally made an application to her superannuation fund for permanent disablement benefits. 24 Also relevant to the termination of employment is the discussion and negotiation concerning the severing of employment when the workers compensation claim was before the Magistrates’ Court in September 2019. The Respondent submits and tendered evidence by way of email correspondence where the Applicant sought pay out of her entitlements and an employment separation certificate. The Respondent submits its decision was based on the evidence that the Applicant is unable to perform the inherent requirements of the job.25

[48] While the merits were not tested, significant evidence was submitted by both parties that that raises sufficient doubt concerning the merits of the Applicant’s general protections application.

[49] I am not satisfied there is a connection between the Applicant’s complaint in 2015, the circumstances around her warning (alleged breaches of privacy and safety) or the allegations that the Applicant was terminated while other employees with injuries remained in employment. I am satisfied that the evidence of the Applicant’s substantial period of absence, together with evidence of her effort to obtain her payment of entitlements and an employment separation certificate, her demand for severance payment and her application for total disability benefits through her superannuation fund confirm she had no intention of returning to work. On this basis, her application that her termination of employment contravened the general protections provisions is not strongly sound or arguable.

[50] On this basis I do not consider the chances of success in the general protections application are in the Applicant’s favour.

Fairness between the person and other persons in a like position

[51] The Applicant submits the Respondent treated her differently. She cites the position of one employee with an injury that was also caught sleeping in the workplace but remained employed.

[52] The Applicant fails to accept that the termination of her employment is unrelated to the reasons for her warning, but rather, relates to her absence of 15 months and evidence of her inability to perform the inherent requirements of the job.

[53] The Respondent submits that any weight given to this consideration is out of step with the authorities.

[54] The facts in this case do not support any departure from the authorities with respect to this consideration, thus I do not find in favour of the Applicant.

Conclusion

[55] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar. To extend the timeframe by 108 days taking into account that the Applicant has filed and withdrawn her unfair dismissal application, and that the merits regarding alleged contravention of general protections is poor, there is no exceptional or extra ordinary reason to grant an extension of time.

[56] I have considered the evidence and submissions against each of the factors and collectively as set out in s.366(2), and I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mrs B. Fiamengo and Mr P. Fiamengo for the Applicant

Mr S. Pill for the Respondent

Hearing details:

2020
Melbourne (by telephone)
25 May

Printed by authority of the Commonwealth Government Printer

<PR721221>

 1   Applicant’s Form F8 at paragraph 5 on page 4.

 2 Affidavit of James Daff dated 12 May 2020 at [31].

 3   Transcript at 9:05 and Exhibit R1.

 4   Ibid.

 5   Ibid, attachment Employment Separation Certificate.

 6   Op Cit pp 8-11 and transcript at 28:17.

 7   Applicant’s Form F8 at paragraph 84.

 8   Respondent’s outline of submissions at [7-8].

 9   Affidavit of James Daff at [6-7] and warning letter attached and marked JAD-1.

 10   Transcript at 1:06:19.

 11   Op Cit at [9-10].

 12 Respondent’s outline of submissions at [7-8] and Affidavit of James Daff at [31].

 13   Respondents outline of argument at Q1e.

14 [2011] FWAFB 975.

15 Ibid at [13].

 16   Transcript insert 23:59 and 25:03.

 17   Transcript at 25:53.

 18   Attachment AP-1 to Anna Pagotto witness statement.

 19   Transcript at 33:41.

 20   Transcript at 1:11:43.

 21   Applicant’s outline of argument at Q1e paragraph 7.

 22   Transcript at 41:41.

 23   Transcript at 21:45 and 52:21.

 24   Attachment AP-3 to Anna Pagotto witness statement.

 25   Witness Statement of Anna Pagotto and John Daff.