Christopher Ross v Australian Postal Corporation
[2024] FWC 1098
•26 APRIL 2024
| [2024] FWC 1098 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Ross
v
Australian Postal Corporation
(C2024/962)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 26 APRIL 2024 |
Application to deal with contraventions involving dismissal – extension of time.
Mr Christopher Ross (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with contraventions involving dismissal. Mr Ross contends that his former employer, Australian Postal Corporation trading as Australia Post (the Respondent), contravened sections 340, 343 and 351 of the Fair Work Act (2009).
Mr Ross’ dismissal took effect on 8 January 2024. He filed his application on 16 February 2024. On 27 February 2024, the Respondent filed a Form F8A response to Mr Ross’ general protections application objecting to the application on the basis that it was not filed within 21 days of the dismissal taking effect.
Section 366 of the Act requires that an application made under s.365 must be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows. Mr Ross’ application was made 18 days after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.
Procedural History
On 13 March 2024, the matter proceeded to a Mentions/Directions hearing –jurisdiction only (extension of time). Prior to the commencement of proceedings, Mr Ross sought an adjournment of his application and a leave application, stay order (first stay application). I refused Mr Ross’ application for an adjournment and the first stay application. Directions were issued from my Chambers that same day and the matter was listed for a jurisdictional hearing (extension of time).
Mr Ross subsequently filed an appeal application against the procedural decisions I made on 13 March 2024, 18 March 2024 and 21 March 2024 and amongst other things, sought a stay of the proceedings listed for 9 April 2024. On 28 March 2024, Deputy President Millhouse issued a decision[1] refusing Mr Ross’ first stay application. The procedural history of this general protections Application is set out in detail in the Deputy President’s decision which I do not intend repeat in full here. A summary of the procedural history that followed is set out below.
On 28 March 2024, I amended the Directions to allow Mr Ross a further period of time to file materials in support of his application. On the same day, Mr Ross appealed a decision of Deputy President Millhouse and made a further Application for a stay under s.606 of the Act. On 5 April 2024, Mr Ross’ application to stay (second stay application) the decision of Deputy President Millhouse was refused. [2]
On 1 April 2024, Mr Ross sent an email to my chambers seeking an order to have his matter transferred to the Federal Court of Australia and for the Commission to issue a certificate that “this proceedings be transferred to the Federal Court of Australia”. I determined that this matter would be better dealt with at the commencement of proceedings on 9 April 2024.
On 5 April 2024, an email was sent from my chambers to Mr Ross noting that he had not filed any submissions in accordance with the amended directions of 28 March 2024 and that the matter remained listed for jurisdictional hearing on Tuesday, 9 April 2024. The parties were informed that they were required to attend the hearing and that pursuant to s.600 of the Act, I may determine the matter in the absence of a person who has been required to attend before the Commission.
At 6:23pm on Friday, 5 April 2024, Mr Ross sent an email to my chambers stating that he was overseas and sought an adjournment until after his return and the hearing of his appeals. Mr Ross’ second stay application was heard earlier that day.
I considered Mr Ross’ request for an adjournment. On Monday, 8 April 2024, Mr Ross was advised by email his request for an adjournment had been refused and he was directed to attend the jurisdictional hearing on 9 April 2024. Mr Ross was again reminded that pursuant to s.600 of the Act, I may determine the matter in his absence.
On Monday, 8 April 2024, Mr Ross again sought to have the matter adjourned. Mr Ross was advised the matter would proceed and he would be granted permission to appear by video.
Jurisdictional hearing (extension of time)
On 9 April 2024, prior to the commencement of proceedings Mr Ross emailed my chambers stating that he sought the following orders:
“1. Stay this proceeding pursuant to the Form 18 Notice of a Constitutional Matter application i have raised; and the Form 69 application I have raised in the Federal Court of Australia. Both of these documents were sent to you in my original stay and leave application.
2. Transfer this proceeding to the Federal Court of Australia, which pursuant to the Fair Work Act and the Federal Court of Australia Employment law practice note is permissible and lawful.
3. Merge this proceeding, once step 2 is done, with my original F2 application (unfair dismissal application).” (sic)
The matter proceeded to a jurisdictional hearing on 9 April 2024, although delayed due to technical issues, Mr Ross appeared by video. Ms Kosiak appeared in person on behalf of the Respondent. At the commencement of proceedings Mr Ross sought to have the matters outlined in his email sent earlier that morning dealt with as preliminary matters.
I heard submissions from Mr Ross on each of the matters outlined in his email. Mr Ross was informed that I intended to hear submissions and his evidence pertaining to the jurisdictional objection being that his application had been filed out of time. Mr Ross refused to make submissions and give evidence in these proceedings for my consideration of the out of time jurisdictional objection. Mr Ross stated that he intended to leave the proceedings without giving evidence. Mr Ross was informed that should he refuse to participate in the proceedings pursuant to s.600 of the Act, I would determine the matter in his absence.
The Commission had been experiencing technology issues throughout the morning. For reasons that were not of Mr Ross’ doing he was disconnected from the proceedings. At the time of the disconnection Mr Ross had already expressed he had no intention to proceed and would be disconnecting himself from the proceedings. The matter was briefly adjourned whilst the technology issues were resolved. Prior to resuming the proceedings, several attempts were made to contact Mr Ross by email and telephone. Mr Ross did not respond to any of the requests for him to contact the Commission and continue with proceedings. Mr Ross was again notified that I intended to proceed in his absence. Mr Ross did not respond. There has been no further correspondence received from Mr Ross.
Consideration
Initial Matters
At the commencement of proceedings on 9 April 2024, Mr Ross sought to re-agitate matters that had been raised in his first and second stay applications which have been heard and determined. Mr Ross subsequently appealed the decision not to grant the first stay application. As outlined earlier, Mr Ross has had his second stay application refused, that decision has also been appealed. I therefore declined to determine matters already been dealt with at first instance by this Commission and are in connection with an appeal application that is yet to be heard and determined.
Mr Ross sought an order that I transfer these proceedings to the Federal Court of Australia. Mr Ross did not identify any provision of the Act and I am not aware of any provision that allows me to make a direct referral of a s.365 application that has been filed out of time to the Federal Court of Australia. Contrary to the expectation of Mr Ross, the Commission’s role in an application made under s.365 is to undertake the specific tasks assigned to it by subdivision A of Division 8 of Part 3-1. Section 368 states that if an application is made under s.365 then the Commission ‘must deal with the dispute (other than by arbitration)’. The Commission may deal with a dispute by mediation or conciliation, or by making a recommendation. Section 368(2) provides that a conference conducted by the Commission for the purpose of dealing with the dispute must be in private. Section 368(3) states that, if the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it must issue a certificate to that effect. Section 369 provides that the Commission may then arbitrate the substantive dispute only if the parties agree. Otherwise, the Commission’s role ceases, and an applicant may proceed to make a general protections application in a court.
However, s.366 provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Section 366(2) states that the Commission may allow a further period if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in subsections (a) to (e), namely: the reason for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a like position. Mr Ross lodged his application out of time, and I am therefore required to determine whether to extend time under s.366(2) of the Act.
Mr Ross also sought to have these proceedings joined with his original and second Form F2 applications (unfair dismissal applications). Mr Ross discontinued both his unfair dismissal applications. Mr Ross submitted he was going to make an application to the Federal Court of Australia to have an order made to reinstate his unfair dismissal applications so that he could have the applications joined and heard together.
Any application or order sought by Mr Ross to have his unfair dismissal applications reinstated and merged with his general protections application has no reasonable prospects of being granted. The Act contains provisions which allow only one application to be made in relation to a dismissal. Multiple applications for the same conduct are not permitted.[3] A general protections dismissal dispute application must not be made if another application or complaint dealing with the dismissal (such as an unfair dismissal application) has also been made. I therefore declined to adjourn the proceedings to allow Mr Ross time to make the application for the orders he sought.
Extension of Time
Reason for the delay –s.366(2)(a)
For this consideration there must be an acceptable or reasonable explanation for the delay.vi If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, this will tend to weigh against a finding of exceptional circumstances.[4]
The reasons for the delay are outlined in Mr Ross’ Form F8 application and summarised as follows:
a. Mr Ross’ mental health issues.
b. Mr Ross had sought an internal review of his dismissal and was unsure if the 21 days applied from the time of the decision from the internal review.
c. Difficulties in obtaining legal representation.
In the Form F8 application at question 1.4, Mr Ross submits that he has a “mental health issue”. Mr Ross has not provided any evidence or made any submission as to the nature of his mental health issues or how they directly or indirectly contributed to the late filing of his application.
In his application, Mr Ross also submits that he wasn’t sure if he was still dismissed because he had made an application on 18 January 2024 to have his dismissal reviewed by the “Board of Inquiry”.
The Respondent submits the ‘Board of Inquiry’ referred to in Mr Ross’ application is the Board of Reference made up of former Commission members and other professionals. On 14 February 2024, the Board of Reference made a recommendation that Mr Ross’ dismissal be upheld.
The evidence before me is that on 8 January 2024, Mr Ross was provided with a termination letter that informed him that his employment with the Respondent had been terminated effective that same day and the reasons for the termination. On 22 January 2024, Mr Ross’ union representative filed an application for an Unfair Dismissal Remedy on his behalf. On 15 February 2024, Mr Ross lodged a second application for an Unfair Dismissal Remedy. On 16 February 2024, the Commission sent correspondence informing Mr Ross that he would have to withdraw one of his unfair dismissal applications. Mr Ross responded advising he would withdraw both applications and then file a general protections dispute. Mr Ross was advised by email of the requisite 21 day time limit for any application. Mr Ross acknowledged that his application would be out of time and proceeded to file his Form F8 general protections application. On 20 February 2024, Mr Ross withdrew his unfair dismissal applications.
In his general protections application, Mr Ross submits that he sought legal advice from Maurice Blackburn lawyers (Maurice Blackburn). Mr Ross submits he had a one hour telephone call with Maurice Blackburn on the Friday before his dismissal. Although Mr Ross takes issue with Maurice Blackburn’s decision not to represent him, it is evident that he had sought legal advice and was aware of the requirement to file his application within the 21 day time period allowed.
I do not accept that Mr Ross at the time of filing his application was unsure as to the status of his employment. This is evidenced by the fact that Mr Ross’ union representative filed an application for an Unfair Dismissal Remedy on 22 January 2024 on his behalf, this application was filed within the time frame required for making of an application under the Act.
At the time of making his general protections application, Mr Ross was aware of the 21 day requirement for filing his application and acknowledged that he was aware that if he was to withdraw his unfair dismissal applications and proceed with his general protections application that the application would be made of time.
Even if I was to accept that Mr Ross has a mental health issue, it is evident that this has not prevented him from making multiple applications in this Commission and in various other courts across Australia. There is no evidence before me to suggest that Mr Ross was not capable of making his general protections application within time. This weighs against grating an extension of time.
Action taken by Mr Ross to dispute the dismissal – s.366(2)(b)
Action taken by an employee to contest their dismissal, other than lodging a general protections application, may favour the granting of an extension of time. [5]
It is not in contention that Mr Ross sought to have his dismissal reviewed internally by the Board of Reference. The action taken by Mr Ross weighs in favour of granting an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
Prejudice to the employer will go against the granting of an extension of time.ix
The Respondent submits Mr Ross had already undertaken action to dispute his dismissal through the Board of Reference review and it would be prejudiced if it had to allocate additional resources to defending the matter.
While I note the Respondent’s submission that having to defend a general protections application involves some resources, it goes more to the issue of inconvenience as opposed to prejudice. There will always be a level of inconvenience associated with either party having to prepare to address a claim. In the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were to be granted and consider this criterion to be neutral.
Merits of the application – s.366(2)(d)
In his general protections application, Mr Ross submits that the Respondent has taken adverse action by terminating his employment in relation to his protections under s.340, s.343 and s.351. Mr Ross describes the reasons for making his application as follows:
“1. I am suing the Commonwealth and Ors in relation to my military service.
2. The Commonwealth spied on my in 2015/16 in relation to this.
1. I made an application to the AOIC in relation to this at the time. Further, this was then a Judicial Review in the Federal Court of Australia.
3. They did this again at the start of my work at Australia Post.
1. I made an application to the AOIC recently, who dismissed this application as the Respondent was the ‘Commonwealth of Australia’. I subsequently have in recent days resubmitted this application with the Respondent being ‘Australia Post’.
4. They then just wanted a reason for AP to sack me.:
1. It is my submission that the Commonwealth of Australia, or one of its entities, have ‘asked’ or ‘ordered’ or ‘coerced’ Australia Post into ‘sacking me’.
2. I believe that this occurred almost immediately from the time I started my employment with Australia Post.
3. I believe that the Commonwealth of Australia ‘found reason’ from the above-stated violations of my Privacy, which is a violation in both civil and criminal law, to then ‘pass on’ to Australia Post as a reason to dismiss me.
5. They then 'found one'; but it 'wasn't enough'; so they 'found 2 more'.
1. I believe, as stated above, that Australia Post then formed a view to find a legally valid and merited ‘reason to sack me’ – whatever the reason – and ‘use that’ to sack me.
2. This is the reason that was made in the application for Unfair Dismissal
Application F2 submitted by my CWU Union representatives, without me knowing at the time what I was doing or the impact of my actions.
3.This ‘official first reason’ was me ‘throwing a parcel’.
4.Two further subsequent ‘reasons’ were then formed because ‘this first reason’ was not ‘strong enough’ ‘by itself’.
6. I submit that substantial ‘Coercion’ has occurred that has harmed me:
1. I submit that the Commonwealth of Australia has ‘coerced’ Australia Post to ‘find reason to sack me’.
2. I submit that Australia Post has ‘coerced’ various employees/colleagues of mine to‘find reason to sack me’. These are, in particular, the various ‘team leaders’ at the Grovedale DC where I worked.
7. All totally unlawful pursuant to:
1. All of the above is unlawful pursuant to multiple civil and criminal law acts, being:”
1. Breach of Privacy Act and Law.
2. Tort of Misfeasance in Public Office.
3. Tort of Abuse of Process.
4. Employment Law.
5. Other Torts.
6. Violation of Fair Work Act; in particular General Protections – Discrimination.
7. Other.” (sic)
In his application Mr Ross has not provided particulars in which the Respondent has allegedly taken adverse action against him.
In respect of s.340 and s.343, Mr Ross outlines a number of grievances he has with his ongoing legal disputes with the Commonwealth of Australia and others. Mr Ross does not particularise the nature of each workplace right of the alleged adverse action. In respect of s.351 Mr Ross has failed to particularise the protected attributes he claims to possess, and the alleged adverse action taken with respect to those attributes. Mr Ross has not made any further submissions in support of his claim.
A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. The Commission has no power to determine the merits and evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so. Although I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I have formed the view that Mr Ross does not have a highly meritorious claim. I find this criterion weighs against the granting of an extension of time.
Fairness as between the person and other persons in alike position – s.366(2)(e)
The Respondent submits that it would be unfair to other persons in a similar position if the application were allowed to progress. Further, to the extent that the delay is attributed to Mr Ross not being clear about the pathways available to him or the information provided to him regarding the internal review of the Dismissal, such matters are not exceptional circumstances.
This consideration concerns consistency with other relevant cases to ensure fairness as to how Mr Ross’ case is decided relative to how other matters of a similar kind have been decided in the past. I agree with the Respondent’s submission that Mr Ross’ alleged ignorance of the requisite time limits and his decision to substitute valid applications with another based on his preference is insufficient and would create a concerning pathway for future applications.
Further, as to the extent to which Mr Ross relies on his mental health condition as a reason for the delay, it has been accepted by this Commission that there is a satisfactory explanation for the delay if a medical condition is established by evidence as having, or likely to have had, an impact on the capacity of an applicant to lodge an application within time.[6] Mr Ross has not been able to establish by evidence that he has a mental health condition or that the alleged mental health condition had an impact on his capacity to lodge an application within time. The absence of medical evidence indicating the condition contributed to the delay or any explanation from Mr Ross as to how the alleged condition resulted in a delay in the present circumstances weights against the granting of an extension of time.
Conclusion
A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. Having considered Mr Ross’ application, the material before me and the Respondent’s evidence and submissions as they relate to each of the criteria set out in s.366(2), I am not satisfied that there are exceptional circumstances, either individually or when considered together warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
An Order[7] to that effect will be published separately to this Decision.
COMMISSIONER
Appearances:
Mr C Ross for the Applicant
Ms M Kosiak, Corporate Lawyer for the Respondent
Hearing details:
2024.
Fair Work Commission in Melbourne:
9 April.
[1] Mr Christopher Ross v Australian Postal Corporation [2024] FWC 802
[2] Christopher Ross v Australian Postal Corporation[2024] FWC 882
[3] Cugura v Frankston City Council (2011) 206 IR 205
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].
[5] [2018] FWCFB 901 at [45].
[6] Ms Samantha Lock v General Assembly Australia T/A General Assembly[2015] FWC 6036
[7] PR774282.
Printed by authority of the Commonwealth Government Printer
<PR774280>
0
5
0