Colleen Pearce v Murray Goulburn Trading

[2013] FWC 2969

[2013] FWC 2969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Colleen Pearce
v
Murray Goulburn Trading; B.D. Wogan-Browne
(C2012/1010)

COMMISSIONER BISSETT MELBOURNE, 16 MAY 2013

Application to amend s.372 application to s.365, to deal with a contravention of a general protections provision in the Act that involves a dismissal - jurisdictional objection application out of time - upheld.

[1] On 29 August 2012 Ms Colleen Pearce (the Applicant) made an application to the Fair Work Commission (the Commission) to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (the Act) in accordance with s.372 of the Act (the s.372 application). That is, it was an application for the Commission to deal with a general protections dispute not involving a dismissal. The application was made against Murray Goulburn Trading Pty Ltd t/a Murray Goulburn Farm and Hardware Supplies (the first Respondent) and, in accordance with the provisions of s.550 of the Act, B.D. Wogan-Browne (the second Respondent).

[2] A conference of the parties was conducted on 8 February 2013 in accordance with the Act (there was a delay in setting the first conference at the request of the Applicant due to her ill health). The Applicant and the second Respondent were each represented at the conference, with permission, by counsel for Applicant and by a solicitor for the second Respondent. The first Respondent was represented by its National Operations and Workplace Relations Manager.

[3] Two weeks after the conference the Applicant indicated in correspondence to the Commission that she intended to pursue her claim in the Federal Magistrates Court. An error led to the issuance of a certificate under s.369 of the Act - such a certificate only needing to be issued should an application made under s.365, not in the case of a s.372 application.

[4] This error was brought to the Commission’s attention by the second Respondent’s lawyer who also indicated that he wished to be heard on whether or not conciliation was at an end and if I should make a statement of advice as to the likely prospects of success of an application in accordance with either s.370 or s.375 (as may be applicable) of the Act.

[5] As a consequence of the correspondence on behalf of the second Respondent I sought the views of the Applicant as to why I should not revoke the s.369 certificate. This resulted in a two page submission for the Applicant claiming that she had been dismissed and is seeking reinstatement and compensation.

[6] A further conference of the parties was held on 20 March 2013. At that conference the Applicant, through her legal representative, indicated that she wished to amend her application to an application under s.365 of the Act.

[7] The second Respondent indicated that he opposed the amendment of the application but, if the application was granted, would oppose an extension of time he says is necessary for the application to have been validly made in accordance with s.366 of the Act. The first Respondent was not present at the second conference and subsequently advised that a change in personal had resulted in the notice of listing from the Commission being misdirected.

[8] A hearing was held on 5 April 2013 to hear argument as to the application to amend the s.372 application and, should that application be granted, the jurisdictional objection of the first and second Respondent that the application was outside the statutory time limit.

[9] If the application to amend the s.372 application and the extension of time application were granted, the first and second Respondent raise a further jurisdictional ground. They submit that to issue a certificate in accordance with s.369 of the Act the Applicant must be dismissed, but each says the Applicant was not dismissed but that she resigned.

Extension of time

[10] The issue of extension of time to make an application under s.365 will be considered first. Unless there are grounds to grant an extension of time it appears there would be little utility to amending the s.372 application.

[11] The Applicant made her application under s.372 of the Act on 29 August 2012. At the time the application was made s.366 of the Act required that an application under s.365 be made within 60 days of the dismissal taking effect.

[12] The Applicant tendered her resignation to the first Respondent on 1 June 2012 and advised that her last day of employment would be 22 June 2012. 1 It was subsequently agreed that she would finish on 29 June 2012.2 The Applicant claims that she was forced to resign by the conduct, or course of conduct, of the first and second Respondent and that in any event her last day of employment was 30 June 2012.

[13] The Applicant says that her last pay slips demonstrates that she worked until 30 June 2012. 3

[14] The 30 June 2012 was a Saturday. The first Respondent says that the pay period is shown on the last pay slip as ending on 30 June. This does not mean the Applicant worked on 30 June. The first Respondent provides in evidence an overtime report that showed that the Applicant did work overtime from time to time but did not regularly work overtime on a Saturday and did not work overtime on 30 June.

[15] On the basis of the evidence before me I find that the Applicant’s last day of employment was Friday 29 June 2012. There is no evidence to suggest she worked on 30 June 2012.

[16] Having found that the Applicant’s last day of work was 29 June 2012, for an application under s.365 to be made within the prescribed period it would need to be received by the Fair Work Commission on 28 August 2012. The application was received by the Commission on 29 August 2012 at 5.18pm. It was therefore received two days late (if you accept that a document received by email on 29 August 2012 after business hours is actually received on 30 August 2012). In any event the application was not received within the 60 days prescribed by the legislation.

[17] The Act stated at the time:

366 Time for application

(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 the FWA allows under subsection (2).

(2) The FWA may allow a further period if the 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.

[18] In order to determine if there are exceptional circumstances such that I should grant the extension of time I must take into account the matters is paragraph (a) - (e).

Reason for the delay

[19] Ms Kapitaniak of Counsel for the Applicant says that the delay in making the application was caused by an error of the Applicant’s solicitors and the Applicant should not be held responsible for that error. In support of this proposition I was referred to Trudgett v Training Aids Australia Pty Ltd 4 in which Raffaelli C found that the Applicant had been represented by lawyers from the beginning and ‘it would not be appropriate to somehow sheet home to the Applicant some contributory responsibility.’5 The Commissioner subsequently found that exceptional circumstances existed and granted an extension of time. He did so, in part, because of the (then) recent wholesale changes to the legislation.

[20] The first Respondent says that there is no evidence before the Commission of the reason for the delay as put forward by the Applicant (that is, representative error) and, further, that if the Applicant sought to rely on her medical condition there is no evidence of that either.

[21] The second Respondent submits that I cannot be satisfied that exceptional circumstances exist because there is no evidence before me. He submits that I cannot accept the submissions from the bar table from Counsel as to the reason for delay.

Any action to dispute the dismissal

[22] The Applicant made no submissions on this point. The first Respondent says that the Applicant submitted her letter of resignation on 1 June 2012. Subsequently the Applicant appealed to the General Manager regarding the second Respondent’s treatment of her. An investigation was conducted and, despite an invitation to do so, the Applicant declined to withdraw her resignation. It was consequently agreed that her employment would end on 29 June 2012.

[23] The first Respondent submits that the Applicant advised its staff that she had engaged solicitors in late 2011 or early 2012. The first Respondent however received no communication from those solicitors contesting the termination to the Applicant’s employment.

Prejudice to the employer

[24] The first Respondent argues that there is prejudice to it in the delay in that, whilst it has readied itself for a possible s.372 application to the courts it has not sought to maintain contact with ex-employees who may have been involved in relation to the end of the Applicant’s employment. The first Respondent says that it is now almost one year since the Applicant left employment, that it has acted in good faith on the basis of the s.372 application made by the Applicant and that there are witnesses relevant to the termination of the Applicant’s employment who no longer work for the Respondent and the Respondent does not have contact with.

Merits of the application

[25] The Applicant put little to me on this matter.

[26] The first Respondent argues that there is little merit to the application. It says that when the Applicant raised an issue with respect to the second Respondent in mid 2010 this was subject to satisfactory mediation. 6 The Applicant made further complaints which were subject to an external investigation in which three complaints were upheld. In early 2012 the Applicant made a complaint to Worksafe which was dismissed. There is no evidence of any other events of bullying in the workplace. It says that the Applicant left employment of her own accord and that it has at all times fully investigated and worked to resolve any complaint the Applicant made. Prior to the Applicant submitting her resignation the second Respondent had left the employment with the first Respondent.

[27] For these reasons the first Respondent says there is no merit to the application.

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

[28] No party made submissions on this point.

Consideration

[29] In this case I have no evidence of the reason for the delay except for a statement from the bar table (which is contested) that representative error is the reason for the delay. No affidavit from the Applicant’s solicitor has been provided which explains the delay or puts that the delay is caused by a representative error. If it is thought that an application for an extension of time will be granted on assertions of ‘representative error’ then that is wrong, particularly in circumstances where this is contested. Whilst the Commission is not bound by the rules of evidence there must be some grounds on which a finding of representative error can be found.

[30] In circumstances where the application for an extension of time is contested (and it has been known for some time that it would be contested) to not provide an affidavit from the Applicant and/or from the solicitors does not allow me to conclude that representative error is the reason for the delay.

[31] In the first conciliation conference Counsel for the Applicant was explicitly asked if it had been intended that the application be made under s.365 of the Act. Both the first and second Respondents were told that the Applicant did not claim a dismissal.

[32] Whilst there is an indication that the Applicant had made a complaint with respect to the second Respondent there is no evidence that she took any action to dispute her alleged dismissal. In fact, on the uncontested submissions for the first Respondent it appears that the Applicant agreed to a delayed departure date and rejected an offer that she remain in employment. The uncontested submission of the first Respondent is that the Applicant had engaged a solicitor from at least early 2012 but there is no evidence that those solicitors took any action to dispute the so-called dismissal of their client with the first Respondent or anywhere else prior to making an application to the Commission.

[33] I am satisfied that there is some prejudice to the first Respondent because of the elapse in time since the Applicant left employment. There are difficulties in providing accurate witness evidence of those who have not thought they needed to keep their minds alert to events surrounding the Applicant’s departure from employment with the first Respondent, especially since they have now left the company.

[34] It is not a matter that representative error automatically provides a sufficient reason to grant an extension to the required filing time. In Clark v Ringwood Private Hospital a Full Bench of the AIRC found that:

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 … In Comcare v A’Hearn (1993) 119 ALR 85, a Full Court of the Federal Court held that delays by a solicitor need not be visited upon a client, and an inexcusable delay on the part of a solicitor may amount to an acceptable explanation for the delay in making an application. 7

[original emphasis]

[35] In the circumstances of this case I have no evidence of the representative error alleged to have occurred. Whilst it is not unusual for a finding of representative error to lead to a finding that exceptional circumstances exist, there must be a basis for such a finding. In this case there is none. Furthermore, where representative error does lead to exceptional circumstances the error exists in addition to other factors that have not been found in this case. I therefore cannot find that exceptional circumstances exist such that I should grant an extension of time.

[36] Should I grant the application to amend the s.372 application to an application under s.365 of the Act I would not grant the extension of time within which to make the s.365 application.

Application to amend the s.372 application

[37] Given my finding above that I would not grant an extension of time, I do not intend to grant the application to amend the s.372 application at this time.

[38] The first Respondent, with whom the second Respondent agrees, submits that the application to amend the s.372 application should not be granted because the original application specified that it did not relate to dismissal and because counsel for the Applicant had previously conceded that it did not relate to dismissal. 8

[39] The Applicant submits that the material accompanying the application, as filed, clearly indicates that the application related to a dismissal.

[40] I am however prepared to reconsider this should the Applicant wish to press the amendment. Advice as to this matter should be given in accordance with the timetable below.

Was the Applicant dismissed

[41] Whilst I do not need to make a decision as to whether the Applicant was dismissed or not my preliminary view is that, on the basis of the material put before me, I could not conclude that she had been dismissed.

[42] I reach this preliminary view on the grounds that: for the last six months of her employment the Applicant made no complaint about her employment; that at the time she submitted her letter of resignation she gave three weeks’ notice which was extended, with her agreement, to four weeks; that it appears that she did not tell the first Respondent, when she negotiated an ex-gratia payment, that she considered she had been forced to resign; and that, whilst she had been in regular contact with the human resources area of the company over the previous couple of years with respect to issues in the workplace she did not, in submitting her resignation, alert them to her sense that she had no choice but to resign.

[43] In addition there is no evidence given by the Applicant as to why she felt forced to resign.

[44] I am not required to and do not reach a concluded view on this matter. It should be noted that if this is a matter that is to be pursued (and this will depend on the Applicant’s decision with respect to the amendment to her application) it is my intention that the parties be given a proper opportunity to address me on the matter.

Conclusion

[45] On the basis of my findings above I will provide each of the parties with 14 days from the date of issuance of this decisions to provide advice to my chambers on what, if any, further action or assistance they require from the Commission in relation to the file. Such advice to the Commission should also be copied to all other parties.

COMMISSIONER

Appearances:

A. Kapitaniak of counsel for the Applicant.

S. Beard for the first Respondent.

P. Hull for the second Respondent.

Hearing details:

2013.

Melbourne;

5 April.

 1   Exhibit MG-1, attachment A.

 2   Exhibit MG-1, attachment B.

 3   Exhibit MG-1, attachment E.

 4   [2010] FWA 2235.

 5   [2010] FWA 2235, [15].

 6   Exhibit MG-1, attachment C.

 7   Print P5279 (22 September 1997).

Exhibit MG-1, paragraph 26 (d) & (e).

 8  

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<Price code C, PR536569>