Diane Duce v City of Swan
[2023] FWC 402
•24 FEBRUARY 2023
| [2023] FWC 402 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Diane Duce
v
City Of Swan
(C2023/422)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 FEBRUARY 2023 |
Application to deal with an unlawful termination dispute
The issues
Ms Diane Duce (the Applicant) has applied under s 773 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with an unlawful termination dispute with respect to the purported termination of her employment by the City of Swan (the Respondent).
The Respondent objected to the application on the basis that the Applicant was not its employee and therefore her employment had not been terminated. Further, it argued, even if the Applicant was its employee, which was not conceded, the Applicant had filed her application outside of the statutory period set by s 774 of the Act. The Respondent pressed that granting the Applicant an extension of time in which to make her application was unwarranted because there were no exceptional circumstances explaining why it was filed late. The Respondent’s final objection was premised upon it not being a national system employer. The Respondent submitted that it had been declared not to be a national system employer for the purpose of the Act, effective 1 January 2023. On this basis, the Respondent considered the Commission absent jurisdiction to hear the application.
The parties were content for the matter to be determined on the papers. I considered that the appropriate approach – observing that whilst there was disagreement over whether the Applicant was or was not an employee of the Respondent, there was no objection taken to the direct evidence filed. Further, the Respondent’s ‘extension of time’ objection, in my view, took primacy over whether the Applicant was an employee.
Before I address the extension of time issue, the Respondent’s objection that it is not a national system employer and therefore this Commission is sans jurisdiction clearly requires attention.
Jurisdiction – local governments in Western Australia
As a result of local governments in Western Australia being declared not to be national system employers (see the Fair Work (State Declarations — employers not to be national system employers) Endorsement 2022 (No. 1) (Cth) (Declaration) and regulation 7 of the Industrial Relations (General) Regulations 1997 (WA) (IR Regulations)), the Act will no longer apply to local governments from 1 January 2023.
There are some matters that the Commission can continue to deal with such as ‘preserved FWC applications’ (unfair dismissals, the National Employment Standards, stand downs and dealing with disputes (Part 6-2)).[1] However, applications under Part 6-4 (including s 773 applications) are not ‘preserved FWC applications’, as defined in regulation 6.07D of the Fair Work Regulations 2009 (Cth) (Regulations).
In respect to ‘non-preserved FWC applications’, after the transition time the Commission must not deal with or continue to deal with a matter that is commenced by a non-preserved FWC application (whether it was made before or after the transition time).[2] There is an exception to this provision, but it is not relevant for current circumstances.
According to regulation 6.07D of the Regulations, ‘a non-preserved FWC application’ means an application or referral:
(a) made by a preserved affected person to the FWC; and
(b) made by the preserved affected person:(i) in or in relation to the person’s capacity (at the time of the conduct that is the subject of the application or referral) as a national system employer or national system employee; or
(ii) in respect of another person’s capacity (at the time of the conduct that is the subject of the application or referral) as a national system employer or national system employee; and
(c) that is not a preserved FWC application.
(emphasis added)
For the following reasons, the application before me is not a ‘non-preserved FWC application’ as defined in regulation 6.07D of the Regulations.
Regulation 6.07D refers to a ‘preserved affected person’, a term that is defined within that section of the Regulations in the following terms:
preserved affected person means any of the following:
(a) an employer listed in Schedule 1 to the endorsement;
(b) an individual who, before the transition time, was employed or usually employed by, or a prospective employee of, an employer mentioned in paragraph (a);
(c) an employer organisation of which an employer mentioned in paragraph (a) was, before the transition time, a member;
(d) an employee organisation, a registered employee association or an industrial association that, before the transition time, represented the industrial interests of an individual mentioned in paragraph (b).
The Respondent is an employer listed in Schedule 1 to ‘the endorsement’. Further, assuming the Applicant was an employee or a prospective employee of the Respondent, then she would be considered a ‘preserved affected person’. However, the application under s 773 was not made by the Applicant in her capacity as a ‘national system employee’ as referred to in the definition of ‘non-preserved FWC application’. Part 6-4 provides at s 770 of the Act that that the terms ‘employee’ and ‘employer’ are attributed with their ordinary meanings. The Applicant therefore made her application on the basis of her being an ‘employee’, not an ‘national system employee’.
Therefore, irrespective of the contention that the Applicant was not an employee of the Respondent, the transitional arrangements prescribed by regulation 6.07F of the Regulations are not engaged. Of course, if the Applicant was not an employee of the Respondent, then she would not, in any event, be a ‘preserved affected person’, and again the the transitional arrangements prescribed by regulation 6.07F of the Regulations would therefore not be engaged.
As the IR Regulations and the Declaration have the effect of rendering the Respondent a non-national system employer, the Applicant is unable to bring a general protections court application and is therefore able to make an application under s 773.[3]
An extension of time
Unquestionably, the parties are in dispute over whether the Applicant was an employee. The Applicant clearly considers she was, and the Respondent fervently disagrees. However, the first issue requiring attention is whether the application has been validly made.
In the recent decision of Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc), the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the required time is not strictly a jurisdictional objection.[4] The Full Bench observed that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[5]
In Herc, the Full Bench acknowledged that it may be necessary to assume that an applicant is an employee for the purposes of determining whether an application for an unfair dismissal remedy is made outside the required time, and if necessary, whether a further period should be granted for the application to be made.[6] The Full Bench expressed it was not a proper approach to deal with an objection such as there having been no dismissal before finding that an application is made within the required statutory period or granting a further period.[7]
Whilst the Full Bench in Herc considered the statutory period under s 394(2) of the Act, and the accompanying ‘extension of time’ provision in s 394(3), these sections of the Act have an uncanny resemblance to ss 774(1)–(2) of the Act. These sections share the same statutory period in which to make an application and permit an extension of time to that period in circumstances which are exceptional. With respect to the term ‘exceptional’, the factors considered in making that determination are all but the same, with the exception that s 394(3) of the Act includes the factor of whether ‘the person first became aware of the dismissal after it had taken effect’. It follows that the reasoning of the Full Bench in Herc is equally apposite here.
The Applicant says her employment was unlawfully terminated effective on 5 January 2023. The Applicant made her application on 28 January 2023, therefore falling outside of the statutory period by one day. An application for an unlawful termination remedy must be lodged within 21 days of a dismissal taking effect.
However, s 774(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the employee 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.
In Stogiannidis v Victorian Frozen Foods Distributors Pty (Stogiannidis),[8]a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[9]which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis,the Full Bench expressed:
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
Where exceptional circumstances are established, the Commission still has discretion whether to grant an extension of time. Such discretion is, however, to be exercised having regard to all the circumstances, including whether the grant of an extension is fair and equitable. The onus for establishing ‘exceptional circumstances’ rests upon the Applicant.
3.1 Background
The broader context and events leading to the Applicant making this application were described by the Applicant in her Form F9. I have summarised the key points:
(a) on 21 June 2022, the Applicant applied for a General Hand position with the Respondent in its recycling centre in Bullsbrook, Western Australia;
(b) by 10 October 2022, she had been shortlisted for the position;
(c) on 25 October 2022, the Applicant was interviewed and informed of the licences, clearances and cards she needed for the position;
(d) before 1 November 2022, the Applicant was offered the position of Team Leader in a telephone call, and she verbally accepted the offer – noting that she was informed that the offer would be sent to her by email;
(e) on 9 November 2022, the Applicant was informed her references had been accepted by the Respondent’s Human Resources Department;
(f) during the period of 15 November 2022 to 30 November 2022, the Applicant provided the Respondent with various clearances, cards and licences;
(g) on 2 November 2022, the Applicant completed a ‘full medical’ at Sonic Health Joondalup and on that same day she purchased work clothes for the position of Team Leader;
(h) between 3 December 2022 and 21 December 2022, the Applicant completed her ‘white card’ course and attended a BWTM course;
(i) on 5 January 2023, the Applicant received a call informing her that she had failed the ‘medical’ and was no longer considered for the position – whilst the Applicant requested a copy of the medical the Respondent declined to provide a copy. The Applicant paid for, and obtained, a copy of the medical report from Sonic Health on 10 January 2023;
(j) the Applicant noted that the medical report stated that she had passed the medical and that she was a suitable candidate for the position; and
(k) on 27 January 2023, the Applicant was given information about the course of action she might take against the Respondent, namely an application under s 733 of the Act.
The Respondent observed that it had not received from the Applicant a copy of her submissions relating to the ‘exceptional circumstances and a grant of an extension of time’, by 9 February 2023, in accordance with the directions issued by the Commission on 2 February 2023. The Respondent’s observation is correct. Nevertheless, the background to this application was drawn from the Form F9, which the Respondent was privy to and did not challenge. Further, the Respondent had received the multiple documents that the Applicant had filed with this Commission.
3.2 The reason for the delay
It was evident from the Applicant’s Form F9 that she had sought guidance from a third party with respect of making the application – hence the reason for the delay. However, the Respondent makes some salient points regarding the reason proffered.
As noted by the Respondent, the alleged termination of employment was said to have been advised on 5 January 2023 and effective on such date. However, the Respondent cautions that this was not the date of dismissal but was the date the Applicant was informed that her job application was not progressing to the next stage.
The Respondent submits that it is aware that the Applicant was being supported by a third party organisation in her job search which assists with applying for vacancies, the recruitment process, obtaining requirements, and considering options.
The Respondent further submits that whilst the Applicant claims that an unlawful termination application pathway was an option only given to her by a lawyer on the ‘adjusted due date’ (public holiday), the Applicant does not provide further context around the reason for the delay or why she needed a lawyer when already being supported by a third party organisation which did not consider this pathway as an option.
It appears that the Applicant was aware of the decision not to continue with her job application on 5 January 2023 and had obtained medical information which she drew conclusion from, on 10 January 2023. As a result, it appears that the Applicant’s consternation that she had been unlawfully ‘treated’ arose 17 days prior to her seeking the professional guidance of a lawyer.
While legal representation or representation by a paid agent is not required to file an application under s 773, and indeed, parties frequently represent themselves in such matters before the Commission, the circumstances of the Applicant warrant consideration. The Applicant’s prospective employer or employer (the Respondent), as the case may be, had recently moved from the federal system of workplace regulation to the state. That in and of itself may cause a level of confusion for a person unfamiliar with workplace laws. The issue concerning jurisdiction as discussed at the beginning of this decision, a manifestation of that very point. Further, the Applicant had not commenced working for the Respondent but considered there was a contract of employment which existed between her and the Respondent. Again, a complexity arguably confounding for a person absent a level of legal expertise, when deciding what recourse to take.
However, whilst I have considered the delay as the period beyond the 21-day period, regard has been had to the circumstances from the date the termination of employment purportedly took effect. Considering the totality of the evidence, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period of the delay in lodging her application. Armed with the knowledge that the employment with the Respondent was not progressing and having received the medical report by 10 January 2023, no explanation has been provided regarding the delay in obtaining guidance as to recourse, or why in fact she was unable to make the application on the day such guidance was provided. This weighs towards a finding that there were not exceptional circumstances.
3.3 Action taken to dispute the termination
There is no evidence before the Commission that the Applicant took any action to dispute the termination of employment prior to filing her application.
In all the circumstances, I consider that this factor weighs against a finding of exceptional circumstances.
3.4 Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, necessarily a factor that would point in favour of the grant of extension of time.
3.5 Merits of the application
The Act requires me to consider the merits of the application in considering whether to extend time. In the current context, the Full Bench of Australian Industrial Relations Commission has emphasised that if the application has no merit, then it would not be unfair to refuse to extend the period for lodgement.[10] Further, it is accepted that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits.[11] The Full Bench has stated it would be sufficient for an applicant to establish that the substantive application was not without merit.[12]
There are several issues at play in this case. The first is the Respondent’s jurisdictional objection that the Applicant was not its employee and therefore her employment was not terminated.
The Respondent asserts that 5 January 2023 marked the day that the Respondent informed the Applicant her job application was not progressing to the next stage. It was not, says the Respondent, the date on which she was advised of the termination of her employment.
The Applicant asserts that she was offered employment and accepted the same. The Applicant appears to have drawn support for her assertion by reference to a purported discussion with Ms Helen Bows (as referred to her in Form F9):
Helen called saying that with my managerial experience and how I conducted myself in the interview they would like to offer me the position of team leader which would be a substantial rise in salary. Around $100,000 with bonuses. I stated I would love to take the position and Helen said she would email me with a letter of the offer and could I email the acceptance back ASAP. I did that immediately.[13]
The parties were provided with the opportunity to provide a copy of the ‘letter of offer’ and the acceptance of the offer by the Applicant – as referred to by the Applicant in the Form F9. Whilst the Applicant provided a comprehensive suite of documents, evidence does not show that the Respondent furnished her with a letter of offer. Instead, on 31 October 2022, an email was sent from Ms Bows to the Applicant which stated:
Hi Diane,
Please see info below and attached for the position of team leader. I think your skill set and experience will align with this position.
If you could let me know ASAP if you would like to take the position, and also send me through 2 x referee contacts as there aren’t any on your application. I will be completing referee checks today and requesting HR to begin the formal process.
Thank you,
Helen[14]
On 31 October 2022, the Applicant replied to Ms Bows’ email dated 31 October 2022 stating that ‘…I would love the position’. Thereafter, the Applicant provided the names of two referees. Subsequent documentation shows that the Applicant provided various forms and certificates to the Respondent over the course of November 2022.
By email dated 9 November 2022, Ms Bows advised the Applicant that HR had approved the personal reference and ‘will commence pre-employment checks, so you should hear from them soon…’.
On 15 November 2022, Ms Melissa Murphy of the Respondent advised the Applicant:
Dear Diane,
Good News! We would like to proceed with your application for the above role at the City of Swan.
In order to advance you to the next stage of the process please complete the attached Pre-Employment Declaration Form and provide all the documents as per the form e.g. Proof of Working Rights, Drivers Licence….[15]
Whilst appreciating that the Applicant formed the view that she had been offered employment and had accepted that offer – such that she was now an employee of the Respondent, the evidence, particularly the direct evidence filed by the parties, does not support such a finding. Were the matter to advance further, the Applicant would clearly face a not insignificant jurisdictional hurdle.
The second issue concerns the Applicant’s substantive argument that she was discriminated against on the basis of her age. Understandably, at this point of the proceedings the Applicant does not draw upon evidence in support of the contravention. However, at best, the purported contravention is premised upon supposition. The Applicant identifies that she personally thinks she was discriminated against, either because of her age or that the Respondent found someone younger for the position.
The Applicant’s supposition is perhaps understandable given the halt in the recruitment process on receipt of the medical report. However, it would appear that the Respondent was aware of the Applicant’s age prior to its receipt of the medical report. Included in the Applicant’s evidence was her ‘Australia Work Entitlement’ certificate that set out her date of birth. That document appears to have been received by the Respondent prior to the receipt of the ‘Pre Placement Medical Assessment’.[16] Furthermore, according to the Applicant, she interviewed with Ms Bows and another person on 25 October 2022.[17] Unless the interview was by way of telephone, and there is no indication that was the case, evidently Ms Bows and the other interviewer were cognisant of the Applicant’s age range, having met her in person. Subsequent to that interview and the receipt of the Australia Work Entitlement, the Respondent continued the recruitment process.
Ultimately, these factors lead me to the view that the application has little merit. I emphasise, however, that the merit spoken of is limited to the merit concerning this particular type of application and the contravention pursued.
I am left with little doubt that the Applicant has spoken candidly about the humiliation, pain, stress, and embarrassment suffered. Clearly, her optimism was deflated at a point where she considered herself far advanced in the process. However, the merit of her application is such that it weighs against a finding of exceptional circumstances.
3.6 Fairness as between the person and other persons in a like position
The Deputy President in Morphett v Pearcedale Egg Farm considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]
Having received no submissions from the parties on this point, I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered those factors in s 774(2) of the Act, I am not satisfied that there are exceptional circumstances for the abovementioned reasons. Consideration therefore turns to whether it is fair and equitable that time should be extended.
The Applicant has expressed her upset about the Respondent’s recruitment process and its failure to honour the offer made to her and her acceptance of the position. The Applicant has noted that this occurred in circumstances where the ‘doctor stated [she] would be a suitable candidate for the position’.[19] The Sonic HealthPlus ‘Pre Placement Medical Assessment’ detailed that the Applicant was ‘…[f]it to safely carry out the duties of the proposed employment without significant risk to self or others’.[20] However, I observe that the Musculoskeletal Assessment undertaken by Sonic HealthPlus, reveals, much like a pentimento, that the Applicant was ‘Fit with Restrictions’. It included the following as a descriptor to the classification:
The candidate has demonstrated a satisfactory level of physical capacity for the proposed job role, but has a stable physical limitation that imposes one or more restrictions as outline below Candidate is fit for the role, however should avoid repetitive lifting over long periods due to core weakness and existing back issues.[21]
By email dated 5 January 2023, the Respondent advised the Applicant:
…As discussed, I’m aware you underwent pre-employment checks for a position at the City.
Unfortunately one of your pre-employment checks suggested you may not be the best fit for the position.
However, having considered the evidence and submissions in light of the application made, and my conclusion that the circumstances are not exceptional particularly given the jurisdictional objection that the Applicant was not the Respondent’s employee, I do not consider it fair and equitable to extend time. Accordingly, I decline to grant the Applicant an extension of time. It follows that this application is dismissed and an Order[22] to that effect issues concurrently.
DEPUTY PRESIDENT
Matter determined on the papers
[1] Fair Work Regulations 2009 (Cth) reg 6.07D (definition of ‘preserved FWC application’), as amended by the Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth).
[2] Ibid reg 6.07F(5).
[3] Fair Work Act 2009 (Cth) s 723.
[4] [2022] FWCFB 234, [15].
[5] Ibid.
[6] Ibid [17].
[7] Ibid.
[8] (2018) 273 IR 156.
[9] (2010) 197 IR 403.
[10] Telstra-Network Technology Group v Kornicki (1997) 140 IR 1, 11.
[11] Ibid.
[12] Ibid.
[13] Form F9 – Application for the Commission to deal with an unlawful termination dispute, [3.1] (Form F9).
[14] Digital Hearing Book, 62 (DHB).
[15] Ibid 68–9.
[16] Ibid 69, 83, 88.
[17] Form F9 (n 13) [3.1].
[18] [2015] FWC 8885, [29].
[19] Form F9 (n 13) [3.1].
[20] DHB (n 14) 43.
[21] Ibid 46.
[22] PR751182.
Printed by authority of the Commonwealth Government Printer
<PR750719>
0
4
0