Donna Deidun v Nordson Australia Pty Ltd

[2021] FWC 6040

[2021] FWC 6040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Donna Deidun
v
Nordson Australia Pty Ltd
(C2021/4002)

COMMISSIONER YILMAZ MELBOURNE, 30 SEPTEMBER 2021

Application to deal with contraventions involving dismissal

[1] On 4 June 2021, Mrs Donna Deidun (the Applicant) was dismissed by Nordson Australia Pty Ltd (Nordson) and advised that her dismissal will take effect from 15 June 2021. Mrs Deidun alleges that her dismissal is an adverse action and contravention of her protection of a workplace right per s.340 of the Fair Work Act 2009 (the Act). She submits that Nordson became aware of her interest to convert her casual employment status to permanent, and the dismissal resulted after she lodged an injury incident report on 3 June 2021.

[2] On 4 June 2021, Mrs Deidun submits that she was informed verbally that due to a company restructure there would be no further work for her after 15 June 2021. On the same day Mrs Deidun was handed a Deed of Release offering her an ex-gratia payment if she signed the Deed and returned it by 10 June 2021, together with a covering letter dated 3 June 2021, which states further to the discussion of the same day, Norsdon reviewed its operational requirements and found there would be no further work for her after 15 June 2021. The letter confirms the attached Deed dated 4 June 2021 to be signed in order to receive payment of the ex-gratia payment. 1

[3] Having signed the Deed of Release, Mrs Deidun received the ex-gratia payment and accrued long service leave based on her casual rate of pay, calculated on her period of employment from 15 April 2013- a period of eight years and one month.

[4] It is not contested that the Deed of Release was provided on 4 June 2021 for her consideration to be signed and returned by 10 June 2021. However, Mrs Deidun submits that she had no choice but to sign the Deed; a signed Deed was returned to Nordson on 10 June 2021.

[5] Mr Roche of Shaddicks Lawyers (the Applicant’s representative) completed the Form F8 application on behalf of Mrs Deidun and filed on 7 July 2021. Registry recorded the application late by one day. Mr Roche accepts responsibility for the lateness of the application.

[6] This matter was referred for an extension of time hearing. The extension of time proceedings will determine whether to allow a further period of time for the lodgement of the application. Where an application is not lodged within the 21-day statutory timeframe, an extension of time will be granted only where the Commission is satisfied there are exceptional circumstances.

[7] Nordson submit that the application is outside the statutory time period and it should be dismissed.

[8] I granted leave to both parties to be legally represented.

Applicant’s submissions

[9] Mrs Deidun and Mr Roche relied on tendered sworn affidavits. 2 Nordson did not seek to cross examine either.

[10] Mrs Deidun submits she had two workplace rights:

•  The right to convert from casual employment to permanent employment, and

•  The right to lodge a workplace injury incident report.

[11] On 3 June 2021 Mrs Deidun allegedly sustained a fall in the warehouse after tripping on a nearby pallet while wrapping a pallet with plastic. The fall resulted in an injury to her wrist and lower back. An incident report was completed and accepted on the same day by Mr Coker, the responsible manager. 3

[12] Mrs Deidun submits that Nordson was aware of her interest to convert to permanent employment, even though she had not formally made the request, the dismissal occurred the day after she lodged an injury incident report.

[13] Mrs Deidun submits there were no discussions regarding a restructure before her dismissal on 4 June 2021. On 4 June 2021 she was called into the office and advised that due to a restructure there would be no further work for her from 15 June 2021, and she was handed a letter together with a Deed of Release to be signed by 10 June 2021 in order to receive an ex-gratia payment.

[14] After becoming aware that Nordson employed another employee, Mrs Deidun submits that she was alerted that she could challenge her dismissal when she made inquiries with “Fair Work”. Mrs Deidun did not clarify if she made inquiries with the Commission or the Ombudsman, either way the point is not critical to the matter. She lodged an unfair dismissal application on 1 July 2021. This unfair dismissal application was lodged by her within the statutory time period of 21 days.

[15] While it was first contended that the general protection application was on time, Mr Roche conceded that it was one day late of the statutory time period.

[16] Mr Roche gave evidence that he took instructions from his client on 5 July 2021. He took further instructions on 6 July 2021 in relation to filing a general protections’ application and withdrawing the unfair dismissal application. He swears he made the error in calculating the 21 days 4 and his client is blameless.

Respondent’s submissions

[17] Nordson submit that the Application should be dismissed as there are no exceptional circumstances to warrant an extension of time, and it further relies on a Deed of Release executed by the Applicant, which bars her from any proceedings against Nordson. 5

[18] While relying on the Deed of Release as a bar to these proceedings, it objected to the inclusion of the Deed and correspondence attached to the Applicant’s form F8, describing the material as confidential and without prejudice communication. 6 Further, the Respondent states that the Applicant voluntarily signed the Deed “knowing it was in full and final settlement of all matters pertaining to her employment,” and “she waived her rights in relation to making any claim.”7

[19] At a conference on 9 August 2021 to deal with an application for an order for the production of two documents by the Applicant, it was confirmed that neither party had a fully executed copy of the Deed. The Applicant confirmed she had an unsigned copy of the injury report and three pages of the Deed (both attached to the form F8) and the Respondent could not confirm that it had fully signed copies of either document. It undertook to send through the documents should it have a copy of them.

[20] At the time of the hearing the Commission had access to the incomplete copy of the Deed as originally filed with the application, and the Respondent’s signed injury report.

[21] Nordson tendered witness statements. Neither witness was called. The witness statements were of:

•  Mr Aidan Coker, Customer Service Manager;

•  Ms Kara Davidson, Customer Service Officer; and

•  Ms Anne Goodson, Finance Officer.

[22] Annexures to the witness statements included a copy of the original Terms of Contract letter dated 16 April 2013, injury incident report signed by Mr Coker on 7 June 2021, letter of termination of employment dated 13 June 2021 characterising the payment of pro rata long service leave, the ex gratia payment and any wages up to 15 June 2021 as Nordson’s legal obligations, the employee termination form identifying gross, tax and net figures paid to the Applicant and text messages between Ms Davidson and Mrs Deidun dated 7 June and 24 July 2021.

Consideration

[23] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[24] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[25] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 8 where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 9

The reason for the delay

[26] Following the dismissal, Mrs Deidun’s evidence is that she made inquiries with “Fair Work” after she discovered that another woman was employed by Nordson after her dismissal. She filed an unfair dismissal application on 1 July 2021. Mrs Deidun sought out legal advice after she filed the unfair dismissal application.

[27] Mr Roche’s sworn affidavit states that he took instructions from Mrs Deidun on 5 and 6 July 2021.

[28] Mr Roche submits that the application was lodged one day late due to representative error and his client is blameless for the lateness of the application. He submits the one day late is solely his responsibility and Mrs Deidun acted within time to file the unfair dismissal application, following the meeting between Mr Roche and his client, the responsibility to file fell on Mr Roche.

[29] In relation to representative error, Mr Roche relies on MN Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 as the authority for representative error. In particular, he relies on the Full Bench comments:

“We think that representative error, in circumstances where the application was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss366(2)(b) to (e) of the Act.” 10

[30] Nordson submits the reason that Mr Roche miscalculated the 21 days is not explained and relies on McLennan v Northern Territory Stolen Generations Aboriginal Corporation[2012] FWA 3167 as analogous to this matter as the Applicant knew of the 21-day time limit but did not take steps to ensure the application was filed within the required period. 11 It further contends that notwithstanding the lateness by one day, it does not warrant exceptional reasons for an extension.

[31] Relevant to this consideration is whether the representative’s error is a ground for an extension of time. Mrs Deidun met with her representative on 5 and 6 July 2021, provided instructions for the filing of the general protections’ application and withdrawal of the unfair dismissal application. Her representative made an error in the calculation of the 21 days and assuredly emailed his client advising that the last day for filing was 7 July 2021. As agreed, Mrs Deidun promptly filed a notice of discontinuance on 8 July at 8:36AM after the filing of her general protections’ application. These actions do not demonstrate any inaction by Mrs Deidun; however, she also overlooked an accurate calculation of the 21 days for filing of the application. Instead, and to her detriment, she relied on her representative, which ordinarily she is entitled to do, and she took action to file the notice of discontinuance in the unfair dismissal claim. In this instance, both Mrs Deidun and her representative promptly acted, albeit a day late. However, the fault rests with Mrs Deidun’s representative; she did not contribute to the delay and in my view, is blameless for the error.

[32] Having regard to the submissions and evidence, I am satisfied that the error is attributed to the representative and not delayed due Mrs Deiden’s actions or inactions, and as such, there are exceptional circumstances. I do consider this consideration to weigh in the Applicant’s favour.

Steps taken to dispute the termination

[33] Ms Deidun submits that she challenged the dismissal by making inquiries with “Fair Work”. There is no evidence that she challenged her dismissal directly with Nordson. In addition to the general protections’ application, Mrs Deidun lodged an unfair dismissal within the statutory time frame. Nordson was aware of the unfair dismissal application, they received a notice of listing on 6 July 2021 for a conciliation conference prior to the filing of the general protections’ application and withdrawal of the unfair dismissal application. Nordson was aware that Mrs Deidun was aggrieved by her dismissal and took steps to challenge her employer’s decision. In view of Nordson’s awareness of Ms Deidun’s grievance this consideration moderately weighs in the Applicant’s favour for an extension of time.

Prejudice to the employer

[34] Ms Deidun submits that due to the short delay there is no real prejudice to the employer. While Nordson does not rely on the delay to argue prejudice, it does rely on the Deed which it says bars these proceedings and therefore prejudices the Respondent. 12 The matter of the Deed is dealt with separately. Putting aside the matter of the Deed, Nordson did not identify any prejudice if an extension of time were to be granted, nevertheless, an absence of prejudice does not weigh in favour of an extension of time. Consequently, I consider this consideration neutral.

Merits of the application

[35] Mrs Deidun submits that she commenced working full time on a temporary contract for eight weeks in 2013 in the position of customer service officer. On completion of the temporary position, she was offered and accepted a casual position working five days per week, although there was some flexibility in the hours worked. From 2017, her responsibilities changed requiring more physical work, and after experiencing back soreness in 2019, she requested, and it was agreed, that she work four days per week. 13

[36] In April 2021, Mrs Deidun was given a work email address and mobile telephone and even though she concedes she did not formally request from her manager a conversion from casual to permanent, these additional employment conditions together with the fact there were no concerns raised in relation to her performance or conduct, gave her confidence that she was held in high regard, 14 and presumably she expected that her employment was not at risk. Mrs Deidun also gave evidence that she discussed her intent to convert from casual to permanent with her co-worker Ms Davidson and the Finance Officer Ms Goodson.

[37] In relation to the alleged contravention of her workplace right - the conversion to permanent employment, she submits that the evidence shows that there was an awareness that she desired conversion, and despite her not formally applying, the legal responsibility to offer conversion, she submits, fell on Nordson to take active steps by 27 September 2021. 15

[38] In relation to the second alleged contravention, Mrs Deidun submits that her employment was dismissed the day after her injury and the day after she lodged a workplace injury report. She relies on s.361 of the Act that the reason for the adverse action is presumed unless proven otherwise. 16

[39] Nordson submits the merits are not strong and further relies on the Deed, which was signed, and the ex-gratia payment made. Nordson tendered witness statements which relate to the merits of both alleged general protections’ contraventions. I make the following observations in relation to the witness statement of Mr Coker concerning the alleged general protections’ contraventions.

[40] Mr Coker describes the hours worked by of Mrs Deidun as ad hoc, which is at odds with her affidavit, witness statement in reply, the terms of employment letter, 17 average hours worked over 2020-2021,18 and the payment of long service leave by Nordson of 262.48 hours for more than 8 years’ continuous service. Mr Coker’s timeline of engagements19 are difficult to follow as he does not provide specific dates. However, he does state that initially Mrs Deidun was employed for 2 weeks to cover a period of annual leave and then states she was employed through an employment agency as a casual on an ad hoc basis. The Terms of Employment letter clearly stipulates that Ms Deidun was employed on a temporary contract for eight weeks working 9:00am – 5:00 pm Monday to Friday being 34 ordinary hours per week. While Mr Coker makes reference to this letter, the witness statement makes a series of imprecise statements concerning Mrs Deidun’s employment in the context of staff taking leave, including her coverage of a full-time employee on maternity leave until January 2014.

[41] There is agreement between the parties that Ms Deidun was engaged as a “casual” employee some time in 2013, however, there is no agreement relating to the hours of work or the regularity in which she worked. From the submitted materials, it is fair to conclude that the contested evidence may show regular and systematic work, with some flexibility and an average of regular weekly hours between 29 and 36 hours per week.

[42] Further Mr Coker’s statement regarding the restructure shows there was no discussion with Ms Deidun until her termination of employment on 4 June 2021, despite the Deed’s cover letter being dated 3 June 2021 which makes reference to a discussion with her on the same date. Mr Coker states that he proposed a restructure to reflect 3 customer service officers (one being a senior), 20 and that the restructure was put on hold pending approval from Nordson Corp21, yet he continued to engage four customer service officers (excluding Mrs Deidun and of which two were temporary engagements through Fusion)22 and dismissed Mrs Deidun (also referred to as a customer service officer in the Deed and all company material including the Employee Termination Form) without any prior consultation or warning, which incidentally was the day after she submits a workplace injury report. Further, I note that Mrs Deidun held the same title by all company accounts, and despite her service of more than 8 years was dismissed while two customer service officers engaged through an agency with a shorter engagement period were retained.

[43] Mr Coker submits that plans for a restructure commenced in 2017, yet if the plans were to affect Mrs Deidun’s employment, it is puzzling that this was kept from her until the day she was dismissed and just on a month after she is allocated a work email and mobile phone. Interestingly, Mr Coker advised Mrs Deidun that the business was returning to four customer service officers 23 which is inconsistent with his witness statement comments regarding plans for a restructure.

[44] On the matter of the injury on 3 June 2021, Mr Coker states that he advised Mrs Deidun that he did not know what was to happen next after she submitted her injury report. In addition, he stated that he did not have a copy of the form so advised Mrs Deidun to obtain a copy from “Scott” the workshop technician because he knew Scott had filled in the form in the past. Further, he signed the injury report and sent it to head officer on 7 June 2021, well after the injury was reported and after the dismissal. The statements by Mr Coker appear inconsistent with his description of his own experience, duties and responsibilities.

[45] The factual evidence was not tested and while the witness statements demonstrate deficiencies and inconsistencies, it is apparent that the factual detail concerning merit is strongly contested. In such extension of time matters, it is not appropriate to hear the evidence to test the merit, although the Commission does have discretion to form a view whether the applicant has a sufficient case for consideration in favour of an extension of time. 24

[46] Mrs Deidun submits that on the basis of the material presented that she has a sufficient case on the merits. Accepting that the Commission exercises discretion and should not make findings of fact on the contested issues, she submits that this consideration should weigh in her favour. 25

[47] Having the benefit of the submissions and witness statements for both the Applicant and Respondent, Mrs Deidun’s application is arguable, therefore this consideration weighs in her favour.

[48] In addition to the Respondent’s submissions on merit, it contends that Mrs Deidun voluntarily entered into a Deed of Release which bars these proceedings. It relies on the Deed which stipulates that the parties have agreed to finalise all claims and issues arising out of employment and the termination of employment. Mr Coker’s witness statement states that he explained each of the clauses contained in the Deed and encouraged Mrs Deidun to seek legal advice before signing the Deed. Mrs Deidun disputes the witness statement of Mr Coker on these points.

[49] Further Nordson submit that Mrs Deidun took away the Deed and returned the document almost a week later, “meaning she had ample time to consider it and seek advice.” 26 Nordson also submit that should the Commission be minded to grant an extension of time, it should conclude that the Deed prevents the general protections’ application from proceeding.27

[50] The first point to make is that Nordson rely on the Deed and submits that the Commission should dismiss the matter on the grounds that it bars these proceedings. To reach this conclusion, the Commission must consider the Deed. The only copy of the Deed is the copy attached to the Form F8. This copy shows it consists of four pages, but only three are available. Further the Deed is not executed. The only signature is by N Conway and from Ms Goodson’s witness statement, it is probable to conclude that it is the signature of the financial controller Ms Narelle Conway. Importantly, the document is not signed by Mrs Deidun. However, despite the incomplete Deed, Mrs Deidun concedes that she signed the Deed.

[51] In relation to the contents of the Deed, Nordson submit that it is a confidential document, and the Applicant breached the Deed by submitting it. From the three available pages there is no confidentiality clause to support this submission. Ordinarily, when a Deed includes a confidentiality clause, it stipulates with some detail the scope of the terms, except to obtain legal or tax advice. No such clause is contained in the copy of the Deed.

[52] In addition, Deeds will provide a release from legal claims. Nordson states that the Deed “was in full and final settlement of all matters pertaining to her employment.” The only words in the Deed concern a sentence under the heading “background”. That sentence is not structured as a release and is not contained in an operative part of the Deed. The Deed does not stipulate that Mrs Deidun will release Nordson from any future claims, rather the words read that the “parties have agreed to finalise all claims and issues arising out of the employment and termination of employment”. Importantly the Deed does not qualify what claims or issues are finalised. The sentence can be read that existing claims and issues are resolved. The Deed contains operative provisions regarding the protection of Nordson’s confidential and commercially sensitive information and it is unclear whether the issues or claims are related to such matters. As there is a page missing, there is no way that the Commission can objectively find that the Deed bars these proceedings which was not an issue or claim at the time Mrs Deidun signed the Deed.

[53] On an objective assessment of the terms of the Deed as provided, it appears to protect private, confidential and commercially sensitive company information, in exchange for the payment of an ex-gratia payment and long service leave entitlements.

[54] In the absence of the complete Deed, Nordson rely on the witness statement of Mr Coker that Mrs Deidun voluntarily and after consideration signed the Deed. It is submitted that she was encouraged to seek legal advice on the Deed and that Mr Coker fully explained all of the terms of the Deed. Mrs Deidun contests Mr Coker’s statement. Given the factual contest, I cannot rely on the witness statement of Mr Coker that Mrs Deidun voluntarily executed the Deed and that she understood that she was barred from these proceedings.

[55] Mrs Deidun also contends that she was advised verbally by Mr Coker and it was confirmed in writing by the Deed’s accompanying letter dated 3 June 2021 that should she not sign the Deed, that the offer of payment would be withdrawn. It is submitted that Mrs Deidun signed the Deed under duress or influence. I do observe that the Deed’s terms state that the settlement terms are the payment of an ex-gratia payment and a sum attributable to accrued long service leave. In considering the terms of the Deed and the covering letter I do observe that should Mrs Deidun not sign and return the Deed by the required date, that both payments would be withdrawn. The reference to long service leave in the Deed is a term of the settlement. Nordson submit there was no duress or influence on Mrs Deidun to sign the Deed and presumably the reliance on the letter of termination dated 13 June 2021 supports this submission, however, in my view the terms of the Deed are clear as is the letter accompanying the Deed that payment of the long service leave entitlement in addition to the ex-gratia payment is conditional on her signing the Deed. I make no conclusions whether Mrs Deidun was or was not under any duress or influence to sign the Deed. I do find that on the material submitted, I cannot conclude that the Deed bars the proceedings warranting that the matter be dismissed.

[56] For the above reasons I cannot agree with Nordson that the Deed bars Mrs Deidun’s application and on the consideration of merit, it weighs in favour of the Applicant.

Fairness between the person and other persons in a like position

[57] Nordson submit that granting an extension would result in lack of fairness between the Applicant and others in a like position. The Applicant did not make submissions in relation to this consideration. Submissions did not identify any persons in a similar position or affected by the same issue, consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[58] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[59] On balance of all the considerations, I am persuaded that the error for the delay is attributable to the representative. I am also of the view that the arguments advanced concerning merit are sufficient for an arguable case, and if the extension is denied, Mrs Deidun is further disadvantaged by the delay of which she is blameless. The action taken to dispute the dismissal falls in Mrs Deidun’s favour marginally, while the absence of prejudice does not fall in her favour, the matter of fairness between the parties is a neutral consideration.

[60] The Respondent relies on a Deed that the matter is barred, and the Commission should dismiss the matter. It relies on a witness statement which is strongly contested, and no complete copy of the Deed was provided. The only copy of the Deed contained 3 of the four original pages and was unsigned by Mrs Deidun. On any objective analysis of the Deed, the terms do not constitute a release, there are no warranties recommending legal advice and the payment of the long service leave entitlement based on the words in the Deed is contingent on signing the Deed. In consideration of the contested facts concerning whether Mrs Deidun voluntarily signed the Deed with an understanding that she waived her rights to these proceedings, and the Deed itself bars these proceedings, I cannot so find.

[61] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be referred to conciliation.

COMMISSIONER

Appearances:

Mr I. Roche for the Applicant

Ms C. Roberts for the Respondent

Hearing details:

2020
Melbourne – by telephone
3 September

Printed by authority of the Commonwealth Government Printer

<PR734488>

 1   Letter dated 3 June 2021 attached to Applicant’s form F8.

 2   Sworn Affidavit of Donna Marie Deidun dated 11 August 2021 and Ian Douglas Roche dated 11 August 2021.

 3   Attachment B to the Affidavit of Donna Marie Deidun.

 4   Affidavit of Ian Douglas Roche at [2] – [5].

 5   Respondent’s outline of argument: extension of time and reliance on the Deed at [1], [2] and [4].

 6   Respondent’s form F8A at Q5.1.

 7   Ibid.

 8   [2011] FWAFB 975.

 9 Ibid at [13].

 10   MN Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24].

 11   Respondent’s outline of argument: extension of time and reliance on the Deed at [17]- [20].

 12 Respondent’s outline of argument: extension of time and reliance on the Deed at [26].

 13   Affidavit of Mrs Donna Marie Deidun at [3] – [8].

 14   Ibid at [9] – [17].

 15 Applicant’s submissions in reply at [3].

 16 Ibid at [4].

 17   Attachment AC-1 to the witness statement of Mr Aidan Coker and attachment A to Affidavit of Ian Douglas Roche.

 18   Attachment to the Applicant’s Form F8.

 19   Witness statement of Mr Aidan Coker at [13] – [30].

 20 Witness statement of Mr Aidan Coker at [48].

 21 Witness statement of Mr Aidan Coker at [52].

 22 Witness statement of Mr Aidan Coker at [4].

 23 Witness statement of Mr Aidan Coker at [83].

 24   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300; Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRCFB, (10 November 2000) at [14].

 25   Applicant’s outline of argument at [16] considering the authority of Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRCFB (10 November 2000) at [14].

 26 Respondent’s outline of argument: extension of time and reliance on the Deed at [29].

 27   Ibid.