Crystal Moore v The Trustee for Hrycyszyn Family Trust t/a Richardson's Harley Davidson

[2019] FWC 2037

[2019] FWC 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Crystal Moore
v
The Trustee for Hrycyszyn Family Trust t/a Richardson’s Harley Davidson (C2019/751)

DEPUTY PRESIDENT MANSINI MELBOURNE, 28 MARCH 2019

Application to deal with a general protections dispute involving dismissal – extension of time

– circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that Ms Crystal Moore (the Applicant) should not be allowed a further period within which to lodge her application. These are the reasons for that decision.

Application made out of time

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] Although the Applicant claimed her termination took effect immediately on 4 January 2019, I am satisfied on the evidence of The Trustee for Hrycyszyn Family Trust (the Respondent) that the Applicant’s dismissal took effect on the later date of 11 January 2019.

[5] The Applicant did not lodge her application until 4 February 2019. Accordingly, the period of 21 days ended at midnight on 1 February 2019 and the Application was lodged 3 days out of time.

[6] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent opposes.

Legal principles – in brief

[7] In order for her general protections claim to proceed, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application.

[8] The Act allows me to extend the period within which a general protections application involving dismissal must be made only if I am satisfied that there are ‘exceptional circumstances’. The matters of which I must be satisfied are set out in s.366(2) of the Act.
[9] The exceptional circumstances test establishes a high hurdle for an applicant. 1 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.2 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.3

[10] The parties initially exchanged materials about the extension of time issue with the application and response, and were then directed to exchange outlines of submissions and any evidence or other materials on which they sought to rely (Outlines) in relation to the extension of time application. 4 On 21 March 2019, I convened a determinative conference.

[11] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an “acceptable” or “reasonable” or “credible” explanation. 5 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.6 Ultimately, it is a question of degree and insight.7

[13] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 8

[14] Appearing before the Commission, the Applicant submitted the following reasons for her delay in filing the application:

a) Delay by the Respondent in providing clarification of the final payslip, sought by the Applicant in communications exchanged between 17 and 29 January 2019. It was not until after the final exchange that the Applicant, on 30 January 2019, sought advice from the Commission, the Fair Work Ombudsman and Job Watch and was made aware of her right to bring a general protections claim; and

b) Due to the complexity and amount of contraventions included in the application, she felt she had to put together a lot of information and wanted it to be correct.

[15] In addition, the original application described a reason for the delay as that the Applicant “had been fearful also due to the loose threats previously received”. The alleged threats form part of the substance of the general protections claim. Indirect threats of retribution were said to have been made during her employment, in the context of having “mentioned Fair Work” when querying her pay and conditions.

[16] In her Outline, the Applicant also stated a reason for the delay was that at the time of filing she was unsure whether her application was due within 21 business days or calendar days. Whereas her original application gave reasons for the lateness. At the determinative conference, the Applicant accepted the inconsistencies in her filed materials and acknowledged that she understood her application was late at the time of filing.

[17] The Respondent submitted that the Applicant was in possession of all the information she needed to assess the merit of her general protections claim prior to the final exchange about the payslip on 29 January 2019. The Respondent noted its termination letter of 4 January 2019 referred her to the Fair Work Ombudsman for information. The Respondent strongly denied the allegations of threats said to have been made during the employment.

[18] The matters referred to by the Applicant do not provide a convincing explanation for the delay.

[19] The Applicant understood that she may have had rights related to her dismissal and knew where to seek advice. I accept that the Applicant may have been awaiting clarification of her final payslip before seeking advice about her rights, even if not necessarily required to assess the merits of a general protections claim. However, after that information was received on 29 January 2019, the Applicant still had 3 business days within which to file her application. Indeed the very next day, on 30 January 2019, the Applicant made contact with three relevant agencies and was advised of her right to bring this claim. In any event, there is sufficient information available on the Commission’s website. This is not an acceptable explanation for the delay.

[20] I also accept that the Applicant may have found the preparation of her application to be complex. However, in the present case, I am not satisfied this reasonably explains the delay.

[21] The Applicant’s stated fear of making this application was vague and not pressed with any conviction. Beyond the original application, the fear was not raised by the Applicant as a reason for the delay at any subsequent stage in the proceedings. The application described her fear in the past tense. No explanation was given for what became of the fear or caused the Applicant to decide to file this claim. The Respondent denied the threats said to be the source of the fear. I prefer the Respondent’s evidence in this respect. Ultimately, the Applicant proceeded to file the claim but did so 3 days out of time. In the circumstances, I am not satisfied that this is a reasonable explanation for the delay.

[22] The Applicant accepted that her evidence was inconsistent regarding her knowledge of the 21 day time limit. In any event, mere ignorance of the statutory time limit is not an exceptional circumstance. 9
[23] The lack of an acceptable, reasonable or credible explanation for the Applicant’s delay in lodging her general protections application weighs against a conclusion that there were exceptional circumstances.

Action taken to dispute the dismissal – s.366(2)(b)

[24] It was not alleged that any action was taken to dispute the dismissal. I consider this weighs against a finding of exceptional circumstances in the present case.

Prejudice to the employer – s.366(2)(c)

[25] The Respondent properly accepted that there is no particular prejudice caused by the short period of delay. However, the mere absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional. I consider this to be a neutral factor in the present case.

Merits of the application – s.366(2)(d)

[26] An application to extend time is essentially an interlocutory matter that does not allow for 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.

[27] The Applicant contends that she was dismissed because she:

• Exercised and proposed to exercise a workplace right on multiple occasions including in requesting an employment contract and raising queries and foreshadowing complaints about payment for overtime worked on weekends and commissions, in contravention of s.340;
• Had a temporary physical disability in the form of an injury to her feet sustained on 30 December 2018, in contravention of s.351; and
• Was temporarily absent from work because of her injury, in contravention of s.352.

[28] The Applicant also contends she was coerced, unduly influenced and/or pressured not to exercise her workplace right to bring an underpayment claim during her employment, in contravention of ss.343 and 344.

[29] The Applicant had been employed by the Respondent as its Finance and Insurance Business Manager. In this role, she was responsible for preparing and submitting all finance and insurance applications on behalf of the Respondent which is in the business of motorcycle sales and service.

[30] The Applicant said she had never received an employment contract, but attached to her application a letter dated 12 October 2018 which on its face contained conditions of employment including working hours and pay. She also attached various emails sent in November and December 2018 to the Administration Officer (in one instance copying the Managing Director) querying weekend pay and commission payments. The Applicant had “mentioned Fair Work” in conversations about her pay queries.

[31] The Applicant alleges that on multiple occasions she was told that “people who took the company to Fair Work always lost” and then the Managing Director would do or cause to do “something horrible to you”. She attributed one such comment to the Sales Manager but did not say when this occurred. She did not particularise any other examples.

[32] On 24 December 2018, the Respondent received notification from the Bank of Queensland (Bank) that the Applicant was suspended from processing finance applications because it alleged she had knowingly entered false information in a finance application, in breach of Bank guidelines and the Respondent’s license. The Respondent immediately notified the Applicant including that an investigation, and an audit by the Bank regarding several other applications prepared by the Applicant, would commence on 3 January 2019. At the determinative conference, the Respondent described the allegation as very serious, potentially amounting to fraud and resulting in sanctions against the Respondent and the Applicant personally. The suspension by the Bank meant that the Applicant was not able to perform the essential requirements of her role, impacting the Respondent’s ability to operate as normal. The Applicant denied being told of, and did not acknowledge an understanding of, the seriousness of the matter.

[33] On 30 December 2018, the Applicant sustained an injury to both feet and was unable to walk. On 2 January 2019, she informed the Respondent that she was unfit to work that day and provided a medical certificate. She was advised her attendance was required the next day, for the investigation and audit. On 3 January 2019, she obtained a medical certificate for the period 3 to 5 January 2019 and again informed the Respondent. Later on 3 January 2019 the Applicant did attend to respond to the investigation and external audit, though whether she freely agreed to do so is disputed. The Applicant’s employment was terminated on 4 January 2019 whilst she was on personal leave having provided a medical certificate.

[34] The Respondent accepts that it dismissed the Applicant but denies that the dismissal was in contravention of the Act as alleged.

[35] The Respondent said the 12 October 2018 letter was the employment contract and it had paid in excess of applicable award rates including for weekend work. The Respondent denied threats by the Sales Manager or any of its employees and, to the contrary, submitted it has a culture of encouraging requests for “help”.

[36] The Respondent stated that the Applicant was dismissed during her probationary period because she was not performing to the standard expected of a Business Manager. It said the decision was due to performance issues identified in the investigation and audit conducted on 3 and 4 January 2019. Its reasons for the decision included concern the issues identified would escalate, the serious risks to the business and to the Applicant personally and that she could not perform her role whilst indefinitely and likely permanently suspended by the Bank. It said its decision was subsequently confirmed by the Bank’s external audit report. For her part, the Applicant denied the allegations and stated she was not properly trained or supported.

[37] It is plain from the above that there are disputed factual issues which will need to be fully explored and tested. Given the interlocutory nature of an application to extend time, it is not appropriate to attempt to resolve those issues at this early stage.

[38] However, a number of the elements of the contraventions required to maintain a general protections claim are not in dispute. There is no dispute that adverse action in the form of dismissal was taken by the Respondent, or that the Applicant exercised and proposed to exercise workplace rights in the form of raising queries about her pay and foreshadowing claims. The existence of the injury to her feet and absence on personal leave with a medical certificate at the time of termination were also not contested.

[39] If the Applicant could establish these matters at trial then the Respondent would be required to show that these were not the reason(s) for the dismissal. Whilst the Respondent presented contrary evidence of its reason(s) for the dismissal, I am satisfied that the Applicant has made out at least an arguable case.

[40] In these circumstances, I am not satisfied that the application lacks merit. I consider that the merits of the application weigh slightly in favour of the Applicant.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[41] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[42] The time limit that applies to the exercise of a person’s right to bring an application under s.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.

[43] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable, reasonable or credible explanation for the delay in filing the application. The merits weigh slightly in favour of, whilst the absence of any action taken to dispute the dismissal weighs against, the grant of an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[44] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR706284>

Appearances:

C. Moore on her own behalf

K. Ollington for the Respondent

Hearing details:

2019

Melbourne and Launceston (by video).

21 March.

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975at[12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 3   Ibid.

 4   Exhibits A1, R1, A2 and R2, respectively.

 5   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 6 Stogiannidis at [39].

 7   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 8   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-]33];Perry at [23].

 9   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].