Danielle Withers v Tennant Creek Memorial Club Incorporated

[2019] FWC 3033

[2019] FWC 3033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Danielle Withers
v
Tennant Creek Memorial Club Incorporated
(C2019/1099)

DEPUTY PRESIDENT MANSINI MELBOURNE, 10 MAY 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] 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).

[3] I have determined that Ms Danielle Withers (the Applicant) did not file within the statutory timeframe and 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

[4] In this case, there is a contest about whether the application was made within the 21 day timeframe.

[5] There may be a question about whether the Applicant was “dismissed”, as it is agreed that the employment relationship came to an end because the employment contract reached its specified expiry and was not renewed. For the purposes of dealing with this application, it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1 of the Act. 1

[6] A critical question in respect of the Respondent’s jurisdictional objection is whether the Applicant actually lodged her application after the prescribed 21 day period. It is therefore necessary to identify when the alleged dismissal “took effect”.

[7] The Applicant and the Respondent agree that the last day of the Applicant’s employment was 29 January 2019. This is consistent with:

a) the Applicant’s contract of employment, which included a term that it would “continue in force for 12 months ending on the 29.01.2019” subject to any exercise of options to extend or to terminate early on notice; 2 and

b) the behaviour of the parties, in circumstances where:

•  on 19 December 2018, the Respondent advised that the employment contract would not be renewed, and

•  the Applicant was then absent on personal leave from 19 December 2018, returned to work for the period from 1 January 2019 and took a further period of personal leave from 24 to 29 January 2019 inclusive. 3

[8] Although it was signed and dated 19 February 2019, it was not until 20 February 2019 that this application was filed with the Commission. In it, the Applicant stated the effective date of her dismissal was 29 January 2019. In response to the Respondent’s jurisdictional objection, the Applicant now submits that her employment contract was “in force and valid as at 29 January 2019” therefore the alleged dismissal did not “commence” until 30 January 2019. 4

[9] Yet, on the evidence before the Commission, the employment contract plainly specified its time of completion, or expiry, as 29 January 2019. The Applicant understood that there was no agreement to extend the contract beyond its expiry, since this was communicated to her on 19 December 2018. The employment relationship then continued until and including 29 January 2019, consistent with the terms of the employment contract. At the hearing, the parties confirmed there is no dispute that 29 January 2019 was the last day of the Applicant’s employment.

[10] Accordingly, I find that the alleged dismissal took effect on 29 January 2019. 5

[11] The 21 days for lodgement does not include the date that the dismissal took effect. 6

[12] The Application was lodged at 1.57pm (Australian Central Standard Time) on 20 February 2019. The period of 21 days ended at midnight on 19 February 2019 and the Application was lodged one day after the prescribed 21 day timeframe.

Exceptional circumstances – summary of legal principles

[13] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application.

[14] This can only occur 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.

[15] The exceptional circumstances test establishes a high hurdle for an applicant. 7 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.8 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.9

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

Reason for the delay – s.366(2)(a)

[17] 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. 10 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.11 Ultimately, it is a question of degree and insight.12

[18] 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. 13

[19] The Applicant submitted that the reason for her delay was her mistaken belief that her last day of employment was 30 January 2019. A belief she held until checking her records on 20 February 2019.

[20] The Applicant relied on the following “series of incidences” as explanation for not checking her records and/or verifying the final date of her employment prior to 20 February 2019:

a) On 30 January 2019, the Applicant commenced relocating from Tennant Creek with an intention to live with her mother in Mackay;

b) On 31 January 2019, the Applicant arrived in Julia Creek when it came to her attention that roads to Mackay were closed due to the Townsville flooding at the time;

c) From 31 January to 12 February 2019, the Applicant resided in a caravan park in Julia Creek;

d) On 12 February 2019, the Applicant drove to Darwin for a pre-planned trip;

e) By 15 February 2019, the Applicant had arrived in Darwin and was able to provide her solicitor with the paperwork required to open her file; and

f) The Applicant then “had to go through [her] packed up belongings” to support her application to the Fair Work Commission; and

g) It was not until 20 February 2019 that the Applicant located her contract of employment, on review of which it came to the Applicant’s attention that her final day of employment was 29 and not 30 January 2019. 14

[21] I accept that the Applicant experienced some unfortunate events following her last day of employment. However, in the present case, I am not satisfied that this reasonably explains the delay.

[22] The Applicant gave clear and unambiguous evidence that she first made contact with her solicitor on 6 February 2019 (whilst residing in the caravan park in Julia Creek) and knew that there was a 21 day timeframe in which to file this application.

[23] Further, the Applicant acknowledges that her employment contract was in her possession at all times and that she chose not go through her belongings to check it until five days after reaching her ultimate destination in Darwin; that is, also five days after providing instructions to her solicitor to prepare this application and one day after the prescribed time for filing this application. She offered no explanation as to why she did not verify her last date of employment through any other means prior to 20 February 2019 and there was no submission that the Applicant’s travels prevented her from making the necessary inquiries. 15

[24] There was also no explanation for the Applicant’s change in position about the effective date of the alleged dismissal, originally marked on the application as 29 January 2019. That original position was consistent with a 19 February 2019 filing date. The application was signed and dated by the Applicant’s solicitor, and would have been made within time, if filed on 19 February 2019. At the hearing, the Applicant’s solicitor submitted in closing that the application was signed the day prior but not able to be filed until 20 February 2019 when final instructions were received from the Applicant.

[25] This is not a case in which representative error is alleged. Even if it were, representative error will not in all cases provide an acceptable explanation for delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error. 16

[26] In the circumstances of this case and the evidence before the Commission, I am not satisfied that there is a reasonable, acceptable or credible explanation for the delay and consider that the Applicant’s conduct weighs against a finding of exceptional circumstances.

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

[27] The Applicant did not allege that any action was taken to dispute the alleged dismissal.

[28] However, at the hearing, the Respondent cross examined the Applicant about a claim filed with the Victorian Anti-Discrimination Commission. The Applicant gave evidence that claim was made “some time” after learning of the decision not to renew her contract, on the basis of alleged discrimination, which she later withdrew on advice that she would achieve “a better outcome” before the Fair Work Commission.

[29] To the extent that this amounts to evidence that the Respondent was on notice that the issue would be contested in the future, it was vague and not pressed by the Applicant.

[30] I consider this to be, at best, a factor that weighs marginally in favour of determining there are exceptional circumstances in the present case.

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

[31] 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.

[32] I consider this to be a neutral factor in the present case.

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

[33] 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.

[34] Whilst on the material before the Commission there appears to be a jurisdictional argument that the natural expiry of the specified term contract is not a “dismissal” for the purposes of the substantive claim, the Applicant contends there was prior employment with the Respondent which is relevant and supports a reasonable expectation of ongoing employment.

[35] In any event it does not appear to be disputed that, in late 2018, the Applicant led a no confidence motion before the Respondent’s Board in relation to the removal of a particular Committee member involving allegations of bullying. The Board agreed to remove the particular Committee member in exchange for a withdrawal of the no confidence motion. The Applicant agreed and subsequently withdrew the no confidence motion, on 12 December 2018.

[36] Around this time, the Secretary of the Board asked the Applicant to attend a meeting to explain why her contract should be renewed.

[37] The Applicant said she had a private discussion with the Secretary in advance of the meeting in which he conveyed that the Committee no longer wanted a woman acting as Assistant Manager. The Respondent denies this conversation ever took place.

[38] On 19 December 2018, the Applicant was advised that her contract would not be renewed. It is agreed that no reasons were given. The Applicant submits that this decision was made in breach of the general protections provisions, specifically because she had exercised a workplace right in making a complaint and because of her sex, in contravention of s.340 and s.351 of the Act.

[39] It is plain from the above that there is a further jurisdictional objection whilst some elements of the contraventions required to maintain a general protections claim are not contested. Both jurisdiction and the alleged contraventions involve disputed factual issues which will need to be fully explored and tested. It is not appropriate to attempt to resolve those issues at this early stage.

[40] In these circumstances, I consider that the merits of the application neither weigh in favour of or against a finding for an extension of time.

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.

[42] I consider this to be a neutral consideration in the present matter.

Conclusion

[43] 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.

[44] 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. The vague evidence of action taken to dispute the dismissal is not sufficient to outweigh the absence of an acceptable, reasonable or credible explanation for the delay in filing the application. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[45] 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

<PR707929>

Appearances:

C. Phillips of Ward Keller for the Applicant

J. Stirk of Povey Stirk Lawyers & Notaries for the Respondent

Hearing details:

2019

Melbourne (by telephone).

18 April.

Printed by authority of the Commonwealth Government Printer

 1   Hewitt v Topero Nominees Pt Ltd [2013] FWCFB 6321.

 2   Exhibit A2, Contract of Employment dated 30 January 2018.

 3   Supported by a medical certificate inclusive of 29 January 2019, see Exhibit A1, Annexure A to Witness Statement of Danielle Withers of 29 March 2019.

 4   See Respondent’s Form F8A Response filed 1 March 2019 and Applicant’s Submissions filed 1 April 2019.

 5   See Ayub v NSW Trains [2016] FWCFB 5500 and the authorities cited therein.

 6 s.36(1) of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the Fair Work Act 2009 (Cth).

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

 8   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].

 9   Ibid.

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

 11 Stogiannidis at [39].

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

 13   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].

 14   Exhibit A1, Witness Statement of Danielle Withers dated 29 March 2019.

 15   See Jalil v BMD Constructions Pty Ltd [2014] FWC 9357.

 16   See Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-420.