Dr Clare Anne McGrory v Australian Digital Health Agency, Hitech Recruitment Australia
[2024] FWC 2593
•19 SEPTEMBER 2024
| [2024] FWC 2593 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Dr Clare Anne McGrory
v
Australian Digital Health Agency, Hitech Recruitment Australia
(C2024/4931)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 19 SEPTEMBER 2024 |
Unlawful Termination application filed out of time – circumstances not exceptional – application dismissed
Dr Clare Anne McGrory (Applicant) made an application to the Fair Work Commission (Commission) under s.773 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unlawfully terminated from her employment with Australian Digital Health Agency (the first Respondent) & Hitech Recruitment Australia (the second Respondent) (collectively the Respondents).
Dr McGrory previously filed an application under s.365 of the Act, which was dismissed by Commissioner McKinnon on 24 May 2024 for want of jurisdiction.[1] The Applicant then appealed the Commissioner’s decision, and a Full Bench of the Commission refused permission to appeal.[2]
The Applicant has subsequently filed the present application, and the information provided in the application and in the employer response forms lodged by the Respondents indicates that the application may have been made out of time.
Before dealing with the matter, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 774(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the employment was terminated; or
(b) within such further period as the FWC allows under subsection (2).
The Determinative Conference
This decision concerns whether the Commission should exercise its discretion to allow Dr McGrory a further period to lodge her unlawful termination application. There being contested facts involved, I issued directions for the filing of material and listed the matter for a determinative conference or hearing.
After taking into account the views of the Applicant and the Respondents and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act).
Permission to appear
I heard from the parties on the question of representation before the Commission.
The first Respondent sought permission to be represented in the matter. I heard from the first Respondent’s proposed representative, a solicitor, about whether permission should be granted. The application for permission was based on section 596(2)(a), that is that the matter is invested with complexity and that I would be assisted in the efficient conduct of the matter if permission was granted
It is my view that these submissions are without merit. In terms of complexity, ordinarily an extension of time (EOT) matter is invested with no complexity. The assessment of “exceptional circumstances” is a question of judgment after considering each of the elements of s.394(3) of the FW Act. In FY24 the Commission dealt with 666 EOT matters. They are simple and easily expedited. This is ‘bread and butter’ work of the Commission.
In practical terms, in most cases, there is very little that a Respondent can contribute in the EOT decision making process if there is no dispute about whether there was a dismissal or the termination date.
In terms of the merits of the matter, it is not appropriate for the Commission during an EOT hearing to resolve contested issues of fact. Consequently, the merits of the matter are often a neutral factor in deciding whether to grant an EOT so long as the Respondent can establish an apparent defence (and most can).
In terms of efficiency the Commission has a performance benchmark that 90% of EOT (albeit Unfair Dismissal) matters must be completed within 35 days of allocation to the Member. In FY24 the Commission resolved 87% within 35 days of allocation. In FY24 I resolved 100% of my allocations within 35 days of allocation. In fact, the application for permission, the submissions and the need for me to issue a decision with reasons has only added to the work required for the conduct of the hearing of the matter.
The second reason was that pursuant to s.596(2)(b) of the Act, it would be unfair not to let the First Respondent be represented because the First Respondent is unable to represent itself effectively.
I declined to exercise my discretion to grant leave to the first respondent on this basis given that both the Applicant and the Second Respondent ae not represented either and given my earlier comments about the complexity of these such matters, I do not believe that any unfairness arises from the first respondent being required to self-represent.
Accordingly, at the determinative conference on 13 September 2024, all the parties were self-represented.
Witnesses
The Applicant gave evidence on her own behalf.
Ms Tracey Davenport filed a witness statement on behalf of Australian Digital Health Agency and Hitech Recruitment Australia filed submissions but no witness statements.
Submissions
Directions were issued on 5 August 2024 and required that the Applicant file her material by no later than 4.00pm on 12 August 2024, the Applicant failed to do so. My Chambers wrote to the Applicant seeking an explanation for her failure to file and directing that she do so by 4.00pm on 19 August 2024. The Applicant filed submissions in the Commission on 18 August 2024. The Respondents both filed submissions in the Commission on 26 August 2024.
Agreed Facts
The parties provided a statement of agreed facts as follows:
·On 25 October 2023, the Applicant entered a contract with the Second Respondent (Contract). A copy of the Contract can be found at Annexure C to the witness statement of Tracey Davenport dated 26 August 2024.
·Under the terms of the Contract, the Applicant was to provide services to the First Respondent. The Applicant commenced providing services to the First Respondent on 6 November 2023.
·On 15 November 2023, the Applicant’s placement with the First Respondent was terminated.
·On 6 December 2023, the Applicant made an application to the Commission under section 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging she had been dismissed by the First Respondent (General Protections Dismissal Application).
·On 24 May 2024, Commissioner McKinnon dismissed the General Protections Dismissal Application in Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited [2024] FWC 1366 (First Instance Decision).
·On 11 June 2024 the Appellant lodged a notice of appeal in relation to the First Instance Decision.
·On 17 July 2024, a Full Bench of the Commission refused permission for the Applicant to appeal the First Instance Decision in Dr Clare Anne McGrory v Australian Digital Health Agency; Hitech Group Australia Limited [2024] FWCFB 311 (Full Bench Decision).
·On 22 July 2024, the Applicant lodged a ‘Form F9 – Application for the Commission to deal with an unlawful termination dispute’.
·On 30 July 2024, the Second Respondent filed a ‘Form F9A – Employer’s response to application for the Commission to deal with an unlawful termination dispute’.
·On 31 July 2024, the First Respondent filed a ‘Form F9A – Employer’s response to application for the Commission to deal with an unlawful termination dispute’.
Multiple Jurisdictional Issues
I note in this matter there are a number of jurisdictional issues. In Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited,[3] the bench found that:
“While the Commission has broad discretion to decide how a matter will be dealt with by not determining, in the proper order, other objections upon which the validity an application depends, will result in an error of the kind identified in House v The King[4].[5]“
On that basis I think it is prudent that I deal with the jurisdictional issues that go to the validity of the application.
Whether the application was validly made?
The Application was brought under s773 of the Act which requires that in order to make an application two elements are required to be met. The first is that an employer has to have terminated an employee’s employment.
On the basis of the agreed statement of facts, the Commission has previously found,[6] upheld on appeal,[7] that the Application was not an employee of the First Respondent.[8] Further, the Commission has previously found that the Applicant performed work for HiTech Group under a contract for services that comprehensively set out the rights and duties of the parties in writing and applied to the work performed by the Applicant.[9]
Therefore, the Applicant was not an employee of either the First or Second Respondent and it follows that neither could have terminated her employment. On that basis the Application is not validly made and must be dismissed.
If I am wrong on that, I turn to the question of whether the application was made in time.
When was the employment termination?
It is not in dispute, and I so find, that the employment was terminated on 15 November 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 22 July 2024.
Was the Application made within 21 days after the termination took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[10]
As I found above, the employment was terminated on 15 November 2023. The final day of the 21 day period was therefore 6 December 2023 and ended at midnight on that day. As I found above, the application was made on 22 July 2024.
The application having not been made within 21 days of the from when the employment was terminated, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 774(2) of the FW Act, the Commission may allow a further period for an Unlawful Termination application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; 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.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[11]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the employment was terminated, it needed to have been made by midnight on 6 December 2023. The delay is the period commencing immediately after that time until 22 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[12]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[14]
Submissions
The Applicant submitted that the delay was because she was mislead by the Commission’s website and consequently filed a General Protections application that was subsequently dismissed and that dismissal was upheld on appeal.
In relation to the reason for the delay, the First Respondent submitted that the Applicant could not have been mislead by the information on the Commission’s website and highlighted that the reference made by the Applicant in her submissions include the relevant information that the Applicant submits she was seeking.[15] The First Respondent also submitted that the Applicant gave evidence in the first proceedings[16] that she had relied upon the Commission’s general protections benchbook to guide her approach and submitted that the benchbook clearly sets out that it is “provided for general guidance purposes only and should not be used as a substitute for professional legal advice.”[17]
At the determinative conference, the Applicant gave evidence that the Fair Work Commissions website was confusing and mislead her. She took the Commission to a page on the Commission’s website and explained how it confused her. I note however that the page she took the Commission to,[18] said that she should make the first claim on a form F8C however I note the Applicant actually made her claim on a form F8.[19]
Findings
Having regard to the above, I find that the reasons for the delay was that the Applicant chose to make an application that she was unlawfully terminated as an employee which was subsequently unsuccessful, so she lodged this present claim after failing to overturn that first finding on appeal.
What action was taken by the Applicant to dispute the termination?
It is not in dispute, and I so find, that the Applicant did take action to dispute her termination prior to making this application on 22 July 2024. She then made this application in the week following the Full Bench decision in respect of her first application.[20]
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted.
Submissions
Specifically, the First Respondent submits that, if an extension of time were granted, it would suffer the following prejudice:
·It has already expended significant cost defending the first application and the appeal; and
·it would be prejudiced further by being forced to spend considerably more time and legal expenses in now defending this further claim which would be particularly unfair given the Commission has found that the Applicant was not an employee.[21]
Findings
Having regard to the matters referred to above, I find that the following prejudice would be suffered by the Respondent if an extension of time were granted for the lodgment of the application:
·Given the extensive time and costs already incurred in defending the first claim and its appeal which have in my view resulted from the Applicant lodging the incorrect application in the first instance.
In all the circumstances, I do find that there would be a prejudice suffered by the Respondent if an extension of time were granted, albeit only a slight prejudice in the circumstances.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Submissions
The Applicant submits that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
·That she was terminated for not being able to perform her role to the level required and;
·This was not her fault as there was considerable delay in setting up her I.T. access and because the I.T. person looked like the man with the moon tattoo.
The Respondent submits that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
·It is clear in the words of section 773(a) of the Act that this application can only be brought by an Applicant who is an employee who was dismissed by an employer;
·and relied upon the authority in Lattouf v Australian Broadcasting Corporation,[22] that to bring an application based upon an alleged unlawful termination having occurred, an employee must have been ‘terminated’ from their employment;[23] and the Commission has already made findings,[24] not overturned on appeal,[25] that the Applicant was not an employee and that neither of the Respondents were her employer.
Findings
I find that, even on the most generous view of the Applicant’s submissions, the application is completely without merit.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being that the Applicant chose to make an application that she was unlawfully terminated as an employee which was subsequently unsuccessful, so she lodged this present claim after failing to overturn that first finding on appeal. I do not accept that the Applicant was mislead by the Commissions material for the reasons already set out in the preceding paragraphs [38] to [40].
(b) the actions taken by the Applicant to dispute the termination, were taken in a timely manner and this application was filed within a short period of the determination of her appeal.
(c) there being a prejudice to the employer, resulting from the significant cost already afforded from the Respondents from the first proceedings and its subsequent appeal.
(d) the merits of the application being very weak particularly so given the previous findings of the Commission in the previous matter which arose from the same circumstances;[26] and
(e) no issue of fairness arising as between the Applicant and other persons in a similar position.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[27] Exceptional circumstances may 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.[28]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an Unlawful Termination remedy is therefore dismissed. I so order.
DEPUTY PRESIDENT
[1] McGrory v Australian Digital Health Agency & Hitech Group Australia Limited, [2024] FWC 1366.
[2] McGrory v Australian Digital Health Agency & Hitech Group Australia Limited, [2024] FWCFB 311.
[3] [2022] FWCFB 234.
[4] (1936) 55 CLR 488.
[5] [2022] FWCFB 234.at [10].
[6] Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited[2024] FWC 1366.
[7] [2024] FWCFB 311.
[8] Ibid at [22].
[9] Ibid at [21].
[10] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[15] Digital Court Book p.68 at [28].
[16] [2024] FWC 1366.
[17] Digital Court Book p.69 at [28].
[18] Digital Court Book p.31.
[19] [2024] FWC 1366.
[20] [2024] FWCFB 311.
[21] Digital Court Book p.70 at [32].
[22] [2024] FWC 1441.
[23] Ibids.
[24] [2024] FWC 1366.
[25] [2024] FWCFB 311.
[26] [2024] FWC 1366; [2024] FWCFB 311.
[27] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[28] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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