Christine Manning v The Star Pty Limited T/A the Star

[2013] FWC 57

[2013] FWC 57

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Christine Manning
v
The Star Pty Limited T/A The Star
(C2012/813)

COMMISSIONER ROBERTS SYDNEY, 9 JANUARY 2013

Application to deal with contraventions involving dismissal - extension of time for filing application.

[1] This decision concerns an application lodged by Ms Manning pursuant to s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with alleged contraventions involving the termination of her employment by The Star Pty Limited T/A The Star (the Company or the Star).

[2] The substantive application was conciliated without success. Directions were issued on 14 August 2012 for Ms Manning to file, and serve on the respondent, an outline of submissions and any witness statements and other documentary material on which she intended to rely by no later than 4 pm on 12 September 2012. The Star was directed in similar terms to file and serve its material by no later than 4 pm on 10 October 2012. At that stage, the extension of time hearing was set down for 15 October 2012. It was later postponed to 19 October 2012 at the request of the Company.

[3] Ms Manning did not comply with the directions issued on 14 August 2012. A hearing was then held on my own motion on 3 October 2012, at which I directed the applicant to file her submissions, evidence and other materials by 12 noon on that day. Ms Manning complied in part with my directions issued on 3 October 2012 by filing a brief outline of submissions 1. The contents of those submissions are summarised later in this decision. The proposed hearing date was vacated and a new hearing scheduled for 5 December 2012. On 11 October 2012, I extended the date of filing for the respondent until 15 November 2012.

[4] The Respondent complied with my directions but Ms Manning failed to file any further material until 30 November 2012 when she filed the material referred to at paragraph 23 below.

[5] At the hearing on 5 December 2012, Ms Manning was represented by Mr D Mahendra, of Counsel. The applicant did not personally attend the hearing. The Company was represented by Mr M Seck, of Counsel.

[6] Ms Manning’s application was filed on 16 July 2012 by her solicitor Mr M Gillis of Gillis Delaney Lawyers. It was stated in that application that the termination of employment took effect on 14 May 2012. It was later claimed, until 5 December 2012, that Ms Manning’s employment ended on either 18 or 19 May 2012 and an extension of time was therefore not required. At the hearing on 5 December 2012 Mr Mahendra conceded that the date the employment relationship ended was 14 May 2012 and that the application was therefore filed one day late 2. An extension of time was opposed by the Company.

Legislative Framework

[7] Section 366 of the Act provides:

“(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.”

Background

[8] Ms Manning was first employed by the Company on or about 30 August 1995 as a Dealer at the Company’s The Star casino. Her employment ended on 14 May 2012 in circumstances which are disputed between the parties. Ms Manning concedes that she resigned from her employment on that day but maintains that her resignation was tendered in circumstances which constituted a constructive dismissal. The Company relies on the resignation as being valid and denies constructively dismissing Ms Manning. In the circumstances of an application pursuant to s.365 of the Act, it is not within my province to decide that particular issue. The ‘resignation issue’ is referred to below in passing but it has not been a factor in my decision making.

Evidence

Mr McGregor

[9] Mr McGregor filed a witness statement 3 but was not required for cross-examination.

[10] Mr McGregor’s statement said that he is an Investigations Officer at the casino and has performed this role since January 2009. The statement went on to set out in some detail an investigation conducted into the email accounts of five Company employees, including Ms Manning.

[11] Mr McGregor went on to say that an examination of Ms Manning’s email account “revealed that Ms Manning had sent and received a large volume of hard core pornographic material using The Star’s email system between 2006 and 2011.” This led to an interview with Ms Manning on 14 May 2012 during which Ms Manning agreed that her actions had breached the Company’s Code of Conduct.

Ms Scheibenstock

[12] Ms Scheibenstock filed a witness statement 4 but was not required for cross-examination.

[13] Ms Scheibenstock’s statement said that she is employed by the Company as the General Manager - Table Games and has been employed by The Star or one of its related companies for some 17 years.

[14] Ms Scheibenstock’s statement went on to set out the progress of an investigation into Ms Manning’s email account and the meeting with Ms Manning on 14 May 2012. I have paid regard to this material but will not set it out in detail, except to note Ms Scheibenstock’s evidence that Ms Manning wrote out a letter of resignation in front of her.

Mr Houlihan

[15] Mr Houlihan filed a witness statement 5 but was not required for cross-examination.

[16] In his statement, Mr Houlihan said that he is The Star’s Investigations Manager and has occupied that role for some three and a half years after serving as a Police Officer for approximately 15 years.

[17] Mr Houlihan’s statement went on to set out in some detail the course of an investigation into Ms Manning’s email account and that material is consistent with the statement of Mr McGregor. His evidence in relation to the meeting of 14 May 2012 is consistent with that of Mr McGregor.

Mr Ratu

[18] Mr Ratu filed a witness statement 6 but was not required for cross-examination.

[19] In his statement, Mr Ratu said that he is a solicitor employed by Allens, which firm instructed Mr Seck in the proceedings before me.

[20] Mr Ratu’s statement went on to give details of other applications lodged with FWA by persons whose employment was terminated following the investigation which also involved Ms Manning. The statement continued with details relating to Ms Manning’s non-compliance with directions issued by the Tribunal (now the Commission). I have paid regard to the details of that material and will deal with the issues contained therein later in this decision.

Written submissions

Ms Manning

[21] Ms Manning, per Mr Gillis, filed written submissions. 7 There is also before me a document styled ‘Witness Statement of Christine Manning’ which was filed shortly before the hearing on 5 December. As Ms Manning did not present herself at the hearing to adopt her witness statement and be subjected to cross-examination, I decided to consider her proposed witness statement as further written submissions.8 I took this course of action over the objection of Mr Seck.

[22] Ms Manning’s primary written submissions deal largely with the issue of when the employment relationship with the Company ended and whether an application for an extension of time was required. That material is no longer relevant to my consideration given Mr Mahendra’s concession on this point (see para 6 above). The primary written submissions go on to argue:

“In the alternative, the applicant contends the time for filing of the Application was missed by one day. The delay in filing was through no fault of the applicant and the respondent has not adduced evidence of any prejudice caused by the late filing.”

[23] In her supplementary written submissions, Ms Manning states that she instructed her solicitors to file an adverse action claim against the Company “on or around 6 July 2012”. Her submissions go on to respond to the evidence of Mr McGregor and Ms Scheibenstock concerning a meeting held on 14 May 2012 to discuss alleged breaches by her of the Company’s internet/email policy on pornographic materials. The 14 May 2012 meeting ended with Ms Manning’s alleged resignation.

The Company

[24] The Company’s written submissions 9 argue in some detail about the date of effect for the ending of the employment relationship and the question of her resignation and the constructive dismissal issue. For the reasons stated above, it is not necessary for me to deal with those matters.

[25] On the extension of time question, the Company argues that ‘exceptional circumstances’ “requires the applicant demonstrate that there is a special case warranting FWA to grant her the indulgence of excusing her failure to comply with the time limit for lodgement.” The onus is on Ms Manning to demonstrate ‘exceptional circumstances’: “In the absence of the applicant serving any witness statements in accordance with FWA’s directions in support of an extension of time, the applicant has not adduced any evidence in support of her claim. Accordingly, the applicant cannot discharge her burden of proof in showing exceptional circumstances to lodge the application outside the time limit.”

[26] The submissions go on to argue that applications pursuant to s.365 of the Act have the benefit of a significantly longer period for lodgement (60 days) than do unfair dismissal claims (14 days). In such a case, even a small delay in filing should be treated seriously. The submissions go on to say that Ms Manning did not take any action to dispute the alleged dismissal and that even if the Star would not suffer any significant prejudice by the granting of an extension of time, that situation is not a factor which should influence me in favouring of an extension. As to fairness between persons in a similar position, the submissions argue that other persons dismissed at the same time as Ms Manning and who lodged claims with the then Tribunal, all did so within the relevant statutory time limit.

[27] The Star’s submissions provide the following chronology of events:

“(a) On 14 August 2012, the applicant was directed to file and serve evidence and submissions by 12 September 2012. The applicant did not comply with that direction.

(b) On 14 September 2012, after the filing deadline had passed, the respondent’s solicitors sent an email to Michael Gillis, the applicant’s solicitor, asking him when the applicant planned on serving the respondent with the outline of submissions and evidence. No response was received.

(c) On 17 September 2012, the respondent’s solicitors sent another email to Mr Gillis again asking for the documents.

(d) On 18 September 2012, in response to the email of 17 September 2012, Victoria- Jane Otavski, another solicitor employed by Gillis Delaney, sent an email informing that the applicant anticipated filing and serving the documents on 19

September 2012. The documents were not filed or served on 19 September 2012.

(e) On 26 September 2012, Mr Gillis assured Commissioner Roberts’ associate that the applicant's outline of submissions and evidence would be filed that day. The documents were not filed or served on that day.

(f) On 3 October 2012, Commissioner Roberts ordered the applicant to file and serve her evidence and submissions by noon that day. The applicant did file and serve submissions on that day but has not, to date, filed or served any evidence. On that day, the respondent’s solicitors wrote to the applicant’s solicitors informing them that the respondent would proceed to prepare its case on the basis that the applicant did not intend to adduce any evidence in support of her application for an extension of time. No response has been received.

(g) The matter was listed for hearing on 19 October 2012. As a result of the applicant’s continual non-compliance with FWA’s directions, the hearing date had to be vacated.”

[28] “As the applicant had failed to comply with the time limit for lodging her application, the applicant’s solicitors must have been acutely sensitive to the need to comply with FWA’s directions. However, the evidence shows that the applicant ignored FWA’s directions without even the courtesy of informing either FWA or the respondent’s solicitors and, even when assurances were made to both FWA and the respondent’s solicitors that the material would be filed shortly, such assurances proved false. The applicant has not sought to justify or excuse her apparent non-compliance with FWA’s directions. In determining whether to grant the applicant an indulgence by excusing her failure to comply with the time limit, this should be a further matter that weighs against FWA exercising its discretion in the applicant’s favour.”

Oral submissions

[29] Both parties made oral submissions. I have paid regard to those submissions and to relevant citations of case law. However, I wish to particularly note Mr Mahendra’s submission that the sole basis for the application to extend time was based on representative error by the applicant’s solicitors, specifically Mr Gillis, who allegedly miscounted the date on which the 60 day time limit for filing expired.

When the applicant first became aware of the dismissal

[30] I find that Ms Manning first became aware of the ending of the employment relationship on 14 May 2012 during her meeting with the management on that day. This finding has not been a factor in my decision making.

Reason for the delay

[31] As noted above, the applicant relied on representative error as the sole reason for the delay.

Action taken by the application to dispute the dismissal

[32] In her supplementary submission, Ms Manning asserts that she instructed her solicitors to file an adverse action claim on or around 6 July 2012. There is nothing before me to back up that assertion but as that date does not seem to be actively disputed by the Company, I am prepared to accept on balance that this occurred as asserted by Ms Manning, despite the non-appearance of Ms Manning at the hearing on 5 December 2012. This means that Ms Manning first approached her lawyers some 53 days after the employment relationship ended.

[33] Apart from instructing her solicitors, neither Ms Manning nor her lawyers appear to have taken any action to dispute the alleged dismissal except for the filing of the application which is before me.

Prejudice to the respondent

[34] The Company does not claim that it would suffer any significant prejudice if the application to extend time is allowed and Ms Manning relies on an absence of prejudice to support her application for an extension of time. I agree that the Company would not suffer any significant prejudice due to the short delay of one day in filing, but that in itself is not a factor which necessarily militates in favour of the granting of an extension of time. Prejudice to the respondent has been a neutral factor in my consideration.

Merits of the application

[35] Merit issues are strongly contested between the parties. In the context of an application pursuant to s.365 of the Act I have considered merit issues as a neutral factor in my decision making. I am however unable to form a view that Ms Manning’s application is totally without merit.

Fairness between the Applicant and other persons in a similar position

[36] In this case, there appears to be a number of persons who were dismissed at or around the same time as Ms Manning and who have filed applications for relief pursuant to either s.394 or s.365 of the Act. However, putting Mr Seck’s submissions on this point at their highest, I am unable to form a view that this factor should militate either positively or negatively in my current deliberations. Accordingly, it has been a neutral factor in my decision making.

Conclusions and Findings

[37] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …” In this application, Ms Manning relies on representative error by her solicitors as constituting such exceptional circumstances.

[38] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 10. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’11. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services12where the Commissioner said:

“Branson J in a decision of the Full Court of the Federal Court 13 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.  14”

[39] The Concise Oxford Dictionary 15 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.16

[40] In Clark and Ringwood Private Hospital 17(Clark) the Full Bench held that the question of whether an error by an applicant’s representative constitutes an explanation for delay is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. In this case, it appears clear that representative error is the sole factor relied upon to explain the late lodgement of Ms Manning’s application. I have also paid regard to the other factors which I am required to consider.

[41] As I noted at paragraph 32 above, I am prepared to accept on balance that Ms Manning instructed Mr Gillis on or about 6 July 2012 to lodge her application for relief. At best, this means that Ms Manning waited some 53 days after the events of 14 May 2012. Ms Manning’s action, or inaction, in that regard appears to me to be the first sign of a dilatory approach by her to the progressing of her claim. The delay in Ms Manning instructing Mr Gillis may well have played a role in Mr Gillis filing the application one day late. However, even if Mr Gillis bears responsibility for the late lodgement, Clark makes it clear that such representative error would only be one of a number of factors to be considered.

[42] The application itself gives the date the employment relationship ended as 14 May 2012 but does not go on to address the out of time issue. In fact, the applicant’s primary written submissions filed on 3 October 2012 argue in effect that no extension of time is required and only makes the very broad alternative submission set out at paragraph 22 above. No mention of representative error is made in either those submissions 18 or the supplementary submissions filed on 30 November 201219. The claim of representative error did not rear its head until 5 December 2012.

[43] Ms Manning submitted a witness statement but did not attend proceedings to adopt it. In fairness to her, I accepted her witness statement as a supplementary written submission. However, her absence has been a determinative factor in my decision making as key issues were unable to be explored with her. In this regard, I note my discussion with Mr Mahendra on this point. 20

[44] Taking into account the totality of the history of Ms Manning’s application, I am unable to be positively convinced that Ms Manning has met the onus on her to demonstrate ‘exceptional circumstances’ such that I should exercise my discretion to extend time. The application was only filed one day out of time but in the context of an application pursuant to s.365 of the Act, such a delay is not insignificant. Ms Manning’s action in not consulting her solicitors until, at best, 53 days after 14 May 2012 reinforces my view as does the quite appalling record of the applicant and her solicitors in complying with my directions. 21

[45] Accordingly, I find that an extension of time should be refused and it therefore follows that the substantive application must be dismissed.

COMMISSIONER

Appearances:

D Mahendra, of Counsel, for Christine Manning.

M Seck, of Counsel, for The Star Pty Limited T/A The Star.

Hearing details:

2012.

Sydney:

3 October;

5 December.

 1   Exhibit Manning 1.

 2   Transcript PN172.

 3   Exhibit Star 1.

 4   Exhibit Star 2.

 5   Exhibit Star 4.

 6   Exhibit Star 3.

 7   Exhibit Manning 1.

 8   Exhibit Manning 2.

 9   Exhibit Star 6.

 10   [2010] FWA 1394.

 11   Ibid, at paragraph 28.

 12   [2009] FWA 1638.

 13 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 14   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

 15   Oxford University Press, Oxford, 1982.

 16   Transcript PNs111-112.

 17   Print P5279, 22 September 1997.

 18   Exhibit Manning 1.

 19   Exhibit Manning 2.

 20   See Transcript PN 210 and following.

 21   See my discussion with Mr Mahendra at Transcript PNs 201-203.

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