Carolyn Gellert v Barwon Health
[2022] FWC 1019
•4 MAY 2022
| [2022] FWC 1019 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Carolyn Gellert
v
Barwon Health
(C2022/1125)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 4 MAY 2022 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
This decision concerns an application by Ms Carolyn Gellert under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). 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).
It is uncontested that Ms Gellert’s employment with Barwon Health (Respondent) ended on 2 December 2021. The GP Application was lodged on 14 February 2022. The period of 21 days ended at midnight on 12 January 2022 and the GP Application was therefore lodged 33 days out of time. Ms Gellert seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent opposes the grant of an extension of time.
A hearing was held by Microsoft Teams Audio on 27 April 2022. Pursuant to section 596 of the Act, Ms Johanne Boctor of Australian Law Partners (ALP), appeared on behalf of the Applicant and Ms Rebecca Best of the Victorian Government Solicitors Office appeared on behalf of the Respondent.
Directions issued in the matter required the Applicant’s material to be filed by 5 pm on 25 March 2022. In accordance with those directions the Applicant filed an Outline of Argument and a witness statement for Mr Robert Grealy, Solicitor, ALP. I note that the attachments to Mr Grealy’s statement were not filed until the morning of the hearing, following a request for these documents from the Commission. Somewhat extraordinarily, Mr Grealy did not attend the hearing or make himself available to give evidence, due, apparently, to other commitments. No notice was provided to the Commission or the Respondent of this unavailability. Ultimately, however, the Respondent did not require Mr Grealy for cross examination. At 9.20 am on 27 April 2022, forty minutes before the hearing, the Applicant filed, without notice, a witness statement for Ms Gellert. The Respondent objected to the statement being received. Ms Boctor was unable to provide any explanation as to why Ms Gellert’s statement was filed approximately one month after it was directed to be so and forty minutes before the hearing, without any communication with the Commission or the Respondent. In light of the Respondent’s objection to the statement, the failure by the Applicant to put the Commission or the Respondent on notice as to the statement or seek leave to file an additional statement, the denial of an opportunity for the Respondent to consider the statement or file material in response to it prior to the hearing, the absence of any explanation as to why the statement was not filed as directed or for the delay in seeking to file the statement on the morning of the hearing and the fact that Ms Gellert has been legally represented at all relevant times, I determined not to accept Ms Gellert’s statement. Accordingly, I have had no regard to the matters contained in Ms Gellert’s statement.
Background and factual findings
Ms Gellert commenced employment with the Respondent on or about 2 April 2014 as a Health Information Manager/Clinical Coder. The Respondent terminated Ms Gellert’s employment on 2 December 2021.
Mr Grealy is a solicitor of ALP[1] and had been engaged by Ms Gellert since at least 22 October 2021[2] to provide advice in relation to, amongst other things, the Respondent’s mandatory vaccination policy and her dismissal.[3] As set out above, Ms Gellert was dismissed on 2 December 2021. After 2 December Ms Gellert instructed Mr Grealy to lodge the GP Application on her behalf.[4] Mr Grealy was aware of, and advised Ms Gellert of, the 21 day statutory time frame for the filing of the GP Application and that the GP Application was required to be lodged by 23 December 2021.[5] Mr Grealy prepared the Application and obtained Ms Gellert’s instructions to file the GP Application on 23 December 2021.[6] On 23 December 2021 Mr Grealy instructed Mr Jason Searle, a clerk engaged by ALP, to lodge the GP Application with the Commission.[7] On 23 December 2021 Mr Searle confirmed to Mr Grealy that he had lodged the GP Application with the Commission.[8]
ALP’s offices were closed from 24 December 2021 to 3 January 2022[9]. Mr Grealy was on leave from 23 December 2021 until 10 January 2022.[10]
On 10 February 2022 Mr Grealy noticed that no communication had been received from the Commission in relation to the GP Application. Mr Grealy caused investigations to be undertaken as to this and spoke with Mr Searle.[11] As part of these investigations Mr Searle provided Mr Grealy with a copy of the email purportedly sent to the Commission lodging the GP Application.[12] The email was sent to [email protected], rather than [email protected].[13] Accordingly, the GP Application was not lodged with the Commission on 23 December 2021.
ALP subsequently lodged the GP Application with the Commission on 14 February 2022.
Consideration
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.[14]
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,[15] 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.[16]
Under section 366(2) of the Act, the Commission may allow a further period of time 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 delay
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[17] or a reasonable explanation.[18] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[19] 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.[20] 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.[21]
As to the reason for the delay, the Applicant submits that delay in lodgement was due to representative error and not caused by her. She submits that the combination of:
the incorrect email being used;
the absence of a “bounce back” message;
the intervening Christmas break; and
the delays in the Commission,
created an exceptional and unusual situation where the error remained undiscovered.[22] The Applicant submits that the error was rectified as soon as possible after it was discovered.[23]
The Respondent submits that although the Applicant’s representative was the “catalyst for the delay” in the lodgement of the GP Application, the Applicant is not blameless because she could have taken steps to ensure that the application was lodged on time.[24] The Respondent submits that the Applicant left the GP Application solely in the hands of her representative and did not take any steps to inquire as to the status of the application, which it submits contributed to the substantial delay in filing.[25] The Respondent submits that the delay between the initial filing attempt on 23 December 2021 and the filing of the GP Application on 14 February 2022 is not “mere representative error” but represents a significant lack of diligence.[26] It submits that in light of Mr Grealy’s evidence that in December 2021 and January 2022 he received instructions from multiple clients and caused multiple applications to be lodged with the Commission,[27] he ought have been aware of the automated email lodgement acknowledgment generated following lodgement of an application and have exercised greater diligence in ensuring the GP Application had been correctly filed.[28] Further, it submits that it was open to Mr Grealy to contact the Commission regarding the status of the GP Application “in the days, weeks or month” following the initial attempted filing on 23 December 2021.[29] Further, the Respondent submits that the Christmas period at the time of the initial attempted filing does not provide a reasonable excuse for the substantial delay in filing. It says Mr Grealy returned from leave on 10 January 2022, more than a month prior to the GP Application being lodged on 14 February 2022 and further, despite identifying on 10 February 2022 that the GP Application had not been lodged, did not lodge the application until 14 February 2022.[30]
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[31] In Clark v Ringwood Private Hospital,[32] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
- depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;
- a distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;
- the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged;
- error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted;[33] and
- it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[34] However, as the Full Bench explained in Long v Keolis Downer,][35] ”an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.[36]
I accept that the initial incorrect filing of the GP Application was due to representative error and that Ms Gellert provided appropriate instructions to Mr Grealy to allow the GP Application to be filed within the 21 day statutory time frame. I also accept that the closure of the ALP offices over the Christmas break and Mr Grealy’s leave provides a reasonable explanation for the period of the delay until 10 January 2022. However, I reject that the absence of a “bounce back” message for the incorrect filing or Mr Grealy’s view’s about the delay for matters to be listed for conciliation provides a reasonable or acceptable explanation for the period. As a practitioner who has “caused numerous applications to be lodged with the Fair Work Commission” Mr Grealy would have known that an automated confirmation of lodgement is generated by the Commission prior to any further steps, such as listing the matter for conciliation, occurring. Accordingly, Mr Grealy ought have identified on his return from annual leave that ALP had not received such confirmation, irrespective of whether a bounce back message was received or his views as to when the matter might be listed for conciliation. I do not consider this constitutes representative error. Further, Mr Grealy identified that the GP Application had not been lodged on 10 February 2022 but did not lodge the application expeditiously. Rather, he waited a further 4 days before doing so. There is simply no explanation for this further delay or why, in all the circumstances, Mr Grealy would not have lodged the GP Application as a matter of urgency. I do not consider this constitutes error of any kind.
However, even if it could be said that representative error provided an acceptable or reasonable explanation for the delay, as set out above, the conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay. Mr Grealy’s evidence is that the Applicant provided him with instructions to lodge the GP Application on 23 December 2021. However, Ms Gellert did not seek confirmation of the lodgement of the GP Application or otherwise engage with Mr Grealy regarding the application at that time. She took no action to ensure that her instructions had been acted upon. Further, between 23 December 2021 and 14 February 2022, a period in excess of seven weeks, Ms Gellert made no enquiries of any kind regarding the status of the GP Application at any time or made any enquiries as to any communications from the Commission regarding the progress of the application. Ms Gellert, in my view, demonstrated a complete lack of diligence in ensuring that the GP Application had been duly lodged and was progressing within the Commission. Accordingly, to adopt the language of the Full Bench in Long v Keilor Downs, I consider that Ms Gellert instructed Mr Grealy and then sat on her hands for an extended period of time while the prescribed time for filing the GP Application passed by. Accordingly, I do not consider that representative error provides an acceptable or reasonable explanation for the delay in filing.
This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
The Applicant submits that the Respondent was “well aware” that she challenged the Respondent’s purported entitlement to make the vaccination policy and dismiss her if she failed to comply with it.[37] The Applicant submits this is apparent from ALP sending a letter to the Respondent on her behalf setting out why she believed the vaccination policy was unlawful (Letter) and Mr Grealy attending the disciplinary outcome meeting on 2 December 2021.[38]
The Respondent submits that the applicant took no steps to dispute the dismissal.[39]
I accept that the Letter does, as submitted, set out the basis upon which Ms Gellert believes the Respondent’s vaccination policy to be unlawful and challenges the lawfulness of the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4) (CHO Directions). The Letter also makes reference to the potential of referring matters to the Commission and states that any dismissal “premised on such a direction is unfair and unlawful”. However, the Letter is dated 21 October 2021 and was therefore written some seven weeks before Ms Gellert’s termination. As such, it simply cannot be action taken to dispute Ms Gellert dismissal as the dismissal had not occurred nor been given notice of at that time. That the Respondent was “well aware” that Ms Gellert disputed the lawfulness of the CHO Directions and therefore the policy is not to the point.
As to attendance at the disciplinary outcome meeting on 2 December 2021, Mr Grealy’s evidence is that at this meeting Ms Gellert “confirmed she considered the Vaccination Policy to be unlawful.”[40] In my view, this does not constitute action taken by Ms Gellert to dispute her dismissal. Once again, it goes to the policy and Ms Gellert’s view as to that, rather than her dismissal.
Ms Gellert took no action to dispute her dismissal. This weighs against the grant of an extension of time.
Prejudice to the employer
The Applicant submits that Respondent was aware that she considered her dismissal to be unlawful and cannot reasonably say that it is now taken by surprise or otherwise prejudiced by the GP Application.[41] Further, the Applicant submits that there can be no prejudice for the delay in circumstances where it was unlikely that the Commission would arrange a conciliation conference within three months of lodgement.[42]
The Respondent submits that the “long delay” in the Commission receiving the GP Application gives rise to a general presumption of prejudice to the Respondent. [43]
I accept that the delay in lodgement is of some length. However, I am unable to identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
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.
Mrs Gellert says that in terminating her employment the Respondent took adverse action against her in breach of section 351 of the Act. The Respondent accepts that adverse action in the form of dismissal was taken against Mrs Gellert but denies any adverse action was taken because of any medical condition, disability or religious belief of Mrs Gellert. The Respondent says that it terminated Mrs Gellert’s employment solely because she failed to comply with a reasonable and lawful direction consistent with the CHO Direction.[44]
The CHO Direction was made by the Acting Chief Health Officer pursuant to section 200 of the Public Health and Wellbeing Act 2008 (Vic) in accordance with emergency powers arising from a declared state of emergency. Accordingly, the Respondent was required to treat the CHO Direction as lawful and requiring compliance. At the time of the dismissal, and indeed to date, the CHO Direction has not been declared by a court to be invalid. It is not in dispute that Ms Gellert did not comply with the Respondent’s direction that she be vaccinated against COVID-19. Further, Ms Gellert fails to advance any plausible argument as to how her dismissal was in contravention of section 351 of the Act or establish any causal link between the attributes relied upon and her dismissal. Additionally, there is no articulation of those attributes.
On the material currently before me Mrs Gellert’s application appears to be weak and have little merit. This weighs against the grant of an extension of time.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[45] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[46]
I did not find the Applicant’s submissions at hearing on this point to be of any assistance.
The Respondent submits that other former employees of the Respondent who were dismissed for failing to comply with the Respondent’s lawful request and directions have filed general protections applications within 21 days of their dismissal taking effect. It submits that it would therefore be unfair as between the Applicant and these other persons to grant an extension of time in this matter. [47]
I accept there may be other employees of the Respondent that are in a similar position to the Applicant in terms of having lost their employment due to the impact of the CHO Directions. There is, however, nothing in the material before me that persuades me that the circumstances of the Applicant’s late filing of her application are in any way impacted by those other matters. I consequently regard this factor as a neutral consideration.
Conclusion
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.
Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Ms Gellert’s application.
Accordingly, I decline to grant an extension of time under section 366(2). Ms Gellert’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
J Boctor for the Applicant
R Best for the Respondent
Hearing details:
2022
Melbourne (by Microsoft Teams)
27 April 2022
[1] Witness statement of Robert Grealy at [1]
[2] Witness statement of Robert Grealy at [4]
[3] Witness statement of Robert Grealy at [3]
[4] Witness statement of Robert Grealy at [9]
[5] Witness statement of Robert Grealy at [10]
[6] Witness statement of Robert Grealy at [11]
[7] Witness statement of Robert Grealy at [12]
[8] Witness statement of Robert Grealy at [13]
[9] Witness statement of Robert Grealy at [14]
[10] Witness statement of Robert Grealy at [15]
[11] Witness statement of Robert Grealy at [18]
[12] Witness statement of Robert Grealy at [19]
[13] Witness statement of Robert Grealy at [20]
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[15] [2011] FWAFB 975
[16] Ibid at [13]
[17] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[18] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[19] [2018] FWCFB 901
[20] Ibid at [39]
[21] 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]
[22] Applicant’s outline of argument at [9]
[23] Applicant’s outline of argument at [10]
[24] Respondent’s outline of submissions at [30]
[25] Respondent’s outline of submissions at [31-33]
[26] Respondent’s outline of submissions at [35]
[27] See witness statement of Robert Grealy at [16]
[28] Respondent’s outline of submissions at [34]
[29] Respondent’s outline of submissions at [35]
[30] Respondent’s outline of submissions at [36]
[31] See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109 as cited in [2020] FWC 3033.
[32] (1997) 74 IR 413 at 418-419.
[33] As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1
[34] QGS v Rogers at [17]
[35] [2018] FWCFB 4109 at [60]
[36] QGS v Rogers at [16]
[37] Applicant’s outline of submissions at [5]
[38] Applicant’s outline of submissions at [5]
[39] Respondent’s outline of submissions at [39]
[40] Witness statement of Robert Grealy at [5]
[41] Applicant’s outline of submissions at [11]
[42] Applicant’s outline of submissions at [12]
[43] Respondent’s outline of submissions at [41]
[44] Respondent’s outline of submissions at [47(a)]
[45] Wilson v Woolworths [2010] WA 2480 at [24-29]
[46] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
[47] Respondent’s outline of submissions at [49]]
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