Dr Clare Anne McGrory v Department of Health and Aged Care & Horizon One Recruitment Pty Limited - [2024] FWC 3085

[2024] FWC 3085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Dr Clare Anne McGrory
v

Department of Health and Aged Care & Horizon One Recruitment Pty Limited

(C2024/6125)

COMMISSIONER SLOAN

SYDNEY, 8 NOVEMBER 2024

Application to deal with an unlawful termination dispute

Horizon One Recruitment Pty Limited (“Horizon One”) is a recruitment and staffing specialist business. It provides services to the Department of Health and Aged Care (“Department”).
Dr Clare McGrory was employed by Horizon One on a casual basis. Her employment commenced on 19 June 2023, when Horizon One placed her on assignment with the Department as a statistician. However, Horizon One terminated the employment on 14 September 2023.[1]
Dr McGrory filed an application with the Fair Work Commission alleging unlawful termination of employment.[2] Such an application must be made within 21 days of termination, unless the Commission allows a further period. [3] The 21-day period ended on 5 October 2023, but these proceedings were commenced on 31 August 2024. Dr McGrory requires the Commission to allow her an extension of time to file the application. She applies for such an extension.
The unlawful termination application describes both Horizon One and the Department as Dr McGrory’s employer. They oppose Dr McGrory being granted an extension of time.[4]

What do I need to decide?

To grant Dr McGrory an extension of time, the Commission must be satisfied that there are “exceptional circumstances”, taking into account:[5]
a.   the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[6] In this case, the delay is 10 months and 26 days;
b.   any action taken by Dr McGrory to dispute the termination;
c.   prejudice to Horizon One or the Department (including prejudice caused by the delay);
d.   the merits of the unlawful termination application; and
e.   fairness as between Dr McGrory and other persons in a like position.

Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[7] Exceptional circumstances may include:
a.   a single exceptional matter;
b.   a combination of exceptional factors; or
c.   a combination of ordinary factors which, when taken together, are seen as exceptional.[8]

The test of “exceptional circumstances” establishes a high hurdle for an applicant for an extension.[9] It is for Dr McGrory to demonstrate that exceptional circumstances exist.[10]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether or not to allow an extension of time.[11]
So, I need to answer these questions:
a. Do exceptional circumstances exist in this matter, taking into account the criteria at [5] above?
b. If so, should I exercise my discretion to allow Dr McGrory an extension of time?

For the following reasons, the answer to the first question is no. It is not necessary to consider the second question.

Why I have decided that there are no exceptional circumstances

I will explain my decision by reference to the criteria at [5] above. I consider that none of them assist Dr McGrory.

The reason for the delay

Some factual context

On 6 October 2023 Dr McGrory commenced proceedings against Horizon One, in which she alleged that her dismissal was in contravention of the general protections provisions of the Act (“General Protections Claim”).[12] Those proceedings were allocated to Commissioner Schneider. The Commissioner conducted a conference on 17 November 2023. On the same day, the Commissioner issued a certificate stating that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful.[13]
Dr McGrory commenced proceedings in the Federal Court of Australia on 1 December 2023, by filing an originating application alleging dismissal in contravention of a general protection and a statement of claim. She named both Horizon One and the Department as respondents.
Horizon One filed an interlocutory application with the Federal Court on 27 March 2024. It sought orders that the pleadings in Dr McGrory’s statement of claim be struck out in their entirety or, in the alternative, in large part.
On 4 April 2024, the Department filed an interlocutory application with the Federal Court. It sought to have the matter against it dismissed for want of jurisdiction, or alternatively for Dr McGrory’s statement of claim to be struck out.[14]
Both of the interlocutory applications came before Justice Collier of the Federal Court on 23 July 2024. Her Honour determined on that day that the proceedings against the Department should be dismissed for want of jurisdiction[15] and made orders to that effect. Her Honour reserved her decision in respect of Horizon One’s application. At the date of the hearing in this matter, that decision had yet to be handed down.
Dr McGrory’s reasons for the delay

Dr McGrory made oral submissions at the hearing of this matter. They included claims of child abuse and murder in the 1970s, for which Dr McGrory believed she was somehow being held responsible. She stated that she was continuing to be subjected to targeted discriminatory and other adverse conduct as a result.
I found Dr McGrory’s submissions to be bewildering and incomprehensible. I repeatedly asked Dr McGrory to explain the relevance of the submissions to her application for an extension of time. She was unable to do so. I have disregarded those submissions.
From the material that Dr McGrory has provided, I consider that her reasons for the delay in commencing these proceedings can properly be summarised as follows:
a.   After her dismissal by Horizon One, Dr McGrory attempted to determine the correct jurisdiction in which to challenge it. She accessed information on the Commission’s website. That information led her to believe that the general protections jurisdiction was “the correct jurisdiction under which to apply as a contractor, such as [she] was”.
b. On that understanding, she made the General Protections Claim in that jurisdiction. Those proceedings were commenced within 21 days of her dismissal.
c. When the General Protections Claim could not be resolved at the conference on 17 November 2023, she “was advised by Commissioner Schneider…to take the matter to [the] Federal Court”.
d.   However, the Federal Court ruled that it did not have jurisdiction. That is, she had received a “final ruling” from the Federal Court that the general protections jurisdiction “was the wrong jurisdiction for her”.
e.   It follows that the material on the Commission’s website was “highly misleading”. At the least, it was confusing for a lay person. Further, the “advice” provided by Commissioner Schneider suggests that “the Commission was not clear either on the correct jurisdiction for this type of grey area involving contractors such as [she] was”.
f. She later determined that she should have commenced unlawful termination proceedings. She has now done so.
g.   Through these proceedings she will be able to “access her right to have a fair hearing under the FWC in relation to her grievances”.

There is no evidence that Dr McGrory was a contractor

Dr McGrory argued that the fact that she was a contractor increased the uncertainty as to the proper jurisdiction in which to commence proceedings. Yet she did not explain how she considers herself to have been a “contractor”, and to whom. In her application, she described both Horizon One and the Department as her employer. It is clear that she was an employee of Horizon One, but there is no evidence that she had a contractual relationship of any kind with the Department. To the extent that Dr McGrory’s submissions rest on her asserted status as a contractor, I reject them.
I observe that the unlawful termination provisions of the Act relate to the termination of an employment relationship.[16] Were Dr McGrory a contractor, but not an employee, she would have no standing to bring these proceedings against the party to whom she was contracted.
Dr McGrory has familiarity with the Commission’s processes
Dr McGrory sought to paint a picture of herself as a lay person bewildered and confused by the technicalities of the Commission’s jurisdiction. But Dr McGrory is no stranger to litigation in the Commission. She has been the applicant or appellant in several cases in which she has represented herself.[17] She also had the capability to commence the Federal Court proceedings, in which she again represented herself. I am not convinced that Dr McGrory is as open to being confused or misled by material on the Commission’s website as she suggested.
Dr McGrory was not misled
But more significantly, she was not misled. Dr McGrory’s case rests on the premise that her case before the Federal Court was dismissed in its entirety for want of jurisdiction. That is wrong.
First, Justice Collier dismissed the Federal Court proceedings only in respect of the Department. Yet she did not do so on the basis the general protections jurisdiction was the “wrong” one for Dr McGrory. Her Honour found that the Department could not be a respondent to the Federal Court proceedings as it was not named as Dr McGrory’s employer in the General Protections Claim. That is, there was no “dispute” in the Commission between Dr McGrory and the Department that could be progressed to the Federal Court.[18]
Second, the Federal Court proceedings against Horizon One were continuing as at the date of the hearing of this matter. This is significant. The Federal Court has not found that it has no jurisdiction to deal with Dr McGrory’s claim against Horizon One. And further, Horizon One’s application to dismiss the Federal Court proceedings was not made on that basis. Horizon One submitted at the hearing before me:
“The second respondent [Horizon One] freely admits that the general protections claim filed by the applicant in the Commission and now being pursued in the Federal Court of Australia is within the jurisdiction of part 3(1) of the Fair Work Act. This has never been a point of dispute, and my client does not seek to dispute that now.”
Horizon One also argued – correctly in my view – that the fact that Commissioner Schneider conducted a conference in respect of the General Protections Claim and issued a certificate reflects an acceptance by him that he had jurisdiction to deal with the dispute. He could not have taken either action otherwise.[19]
It follows that Dr McGrory’s contention that she was misled into commencing proceedings in the “wrong jurisdiction” has no substance.
This largely addresses Dr McGrory’s argument that she was confused by the Commission’s website content. She has not shown that it was inaccurate, let alone “highly misleading”. I can put to one side the fact that the Commission’s website does not and is not intended to provide legal advice.
If Dr McGrory was not misled, any “advice” she received from Commissioner Schneider is irrelevant. But I do not accept that the Commissioner gave such advice. At the hearing Dr McGrory gave the following evidence:
“I asked him [Commissioner Schneider] directly, should I then, you know, try re-applying a different way? And he said, ‘No. The next step, you would have to go to the Federal Court’, which is what I then did, just following his advice, which I wasn’t legal – official legal advice.”
Members of the Commission regularly conduct conferences in general protections matters. In doing so, they may outline to the parties the steps that might be taken by an applicant if the dispute cannot be resolved during the conference. It would be entirely unremarkable for a Member to inform an applicant of their options to progress the dispute, either by arbitration by the Commission (if the parties agree to the Commission doing so)[20] or by making a general protections court application.[21] This is an entirely different thing to the Member advising them to do so. Commissioner Schneider’s comments fall into the first category.
Poulton v Rail Infrastructure Corporation
Dr McGrory placed significant reliance on Poulton v Rail Infrastructure Corporation.[22] In that case the Full Bench granted an applicant an extension of 21 months to file an unfair dismissal application. Dr McGrory argued that the case supported the Commission granting her an extension of time.
I do not see that Poulton is of any assistance to Dr McGrory. In that case, there was doubt as to which of the Australian Industrial Relations Commission (“AIRC”) or the Industrial Relations Commission of New South Wales (“NSWIRC”) had jurisdiction to deal with Mr Poulton’s unfair dismissal claim. The Full Bench found that there was “understandable uncertainty” as to the proper jurisdiction.[23] It recognised that Mr Poulton had unsuccessfully sought advice on that question from his employer and union. The decision describes the long process – involving proceedings in the NSWIRC and the AIRC – that finally resulted in a decision by the NSWIRC that it lacked jurisdiction. It was relevant to the Full Bench that Mr Poulton filed his application in the AIRC within a week of the NSWIRC decision.
Those facts are in contrast to the current case. There is not the same uncertainty as to the correct jurisdiction, if indeed there is any.
It is also significant that it took Dr McGrory 39 days after Justice Collier’s decision on 23 July 2024 to commence these proceedings.
Conclusion
Dr McGrory does not necessarily have to provide a reason for the entire period of the delay.[24] She also does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But the absence of an acceptable explanation for the delay (or part of it) will generally not help an applicant. [25]
There is no acceptable explanation for the delay in this case.

What action was taken by Dr McGrory to dispute the termination?

It will be relevant if an employee has taken action taken to dispute their termination, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time.[26]
The only actions that might arguably show that Dr McGrory disputed her termination were her making the General Protections Claim, and subsequently commencing the Federal Court proceedings. They do not assist Dr McGrory’s application for an extension of time, for two reasons.
First, Dr McGrory brought the General Protections Claim only against Horizon One. That action cannot support an extension of time in so far as these proceedings are brought against the Department. (Of course, if the Department was not Dr McGrory’s employer there was no “termination” to dispute.)
Second, and more significantly, the Act prevents multiple actions being taken by a person in connection with their dismissal.[27] Dr McGrory brought the General Protections Claim and the Federal Court proceedings under the general protections provisions of the Act. Importantly, the Federal Court proceedings remain on foot as against Horizon One. There is significant doubt as whether Dr McGrory was entitled to commence these proceedings at all.[28] In that context, the commencement of those proceedings would not and should not support a finding that exceptional circumstances exist.

Would Horizon One or the Department suffer prejudice (including prejudice caused by the delay)?

There is an obvious prejudice to Horizon One and the Department were I to grant an extension of time: they would be denied the benefit of the limitation period.[29] Further, the delay is significant. A long delay might give rise to a presumption of prejudice.[30]
But there would be a more direct prejudice to the respondents. They would be put to the inconvenience and expense of pressing the other objections they have raised to Dr McGrory’s application. I do not need to decide those objections now, but they appear to have force. Yet even were those objections dismissed, the respondents would be required to defend an application which I consider lacks merit. I explain below my reasons for reaching this view.

What are the merits of the application?

For present purposes, it is sufficient for Dr McGrory to show that her unlawful termination claim has some merit. The greater the merit, the more weight will be given to this factor.[31] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[32]
I am not able to discern on the information available to me what case Dr McGrory is advancing against either Horizon One or the Department. Her application does not disclose how her termination contravened the general protections provisions of the Act. It is a confused and confusing document. Of course, if the Department was not Dr McGrory’s employer – which appears to be the case – there is absolutely no basis on which the claim can be brought against it. I consider that Dr McGrory’s claim lacks merit.

Fairness as between Dr McGrory and other persons in a like position

This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as to ensure fairness as between the applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[33]
Dr McGrory provided me with no basis on which to find that fairness between herself and other persons in a similar position favours the granting of an extension of time. I am not aware of any other cases before the Commission that might be relevant. However, I am mindful that the Commission has previously refused to grant Dr McGrory an extension of time in similar circumstances.[34]

Conclusion

For the reasons I have set out, I am not satisfied that there are exceptional circumstances in this case. Dr McGrory’s application for an extension of time is declined.
I order that the proceedings be dismissed.

COMMISSIONER

Appearances:

Clare Ann McGrory, Applicant
Kasia Czarnota, for the First Respondent
Louise Hogg, for the Second Respondent

Hearing details:

2024
Sydney (by video)
21 October 2024

[1] There was a minor disagreement as to the date of dismissal. Dr McGrory stated that she was notified of the termination of her employment on 14 September 2023, but it did not take effect until the following day. Horizon One led evidence that the termination occurred on 14 September 2023. There is nothing material about that distinction for present purposes, although I prefer the evidence of Horizon One in this regard.

[2] The application was made under s 773 of the Fair Work Act 2009 (“Act”). In this decision, references to legislative provisions are to provisions of the Act.

[3] Sections 774(1)

[4] The Department and Horizon One raised a number of other jurisdictional objections to the application. The matter was previously allocated to Commissioner Schneider, who determined that he would deal first and separately with the question of whether Dr McGrory should be granted an extension of time. When the matter was reallocated to me, no party submitted that I ought to adopt a different approach, and I saw no reason to do so.

[5] Section 774(2). The requirement to take these matters into account means that each of them must be considered and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19].

[6] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]

[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In this case, the Ful Bench considered the meaning of “exceptional circumstances” in the context of s 394(3), which is in relevantly the same terms as s 774(2).

[8] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

[10] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.

[11] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]

[12] The application was brought under s 365

[13] The certificate was issued under s 368(3)(a)

[14] McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810 at [1] and [8]

[15] McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810 at [20]

[16] Part 6-4 of the Act is titled “Additional provisions relating to termination of employment”. Division 2 of that Part, under which these proceedings are brought, is titled “Termination of employment”.

[17] See Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited[2024] FWC 1366; Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited[2024] FWCFB 311; Dr Clare Anne McGrory v Australian Digital Health Agency, HiTech Recruitment Australia[2024] FWC 2593

[18] McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810 at [17] and [19]

[19] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [51]

[20] Section 369

[21] As defined in s 368(4)

[22] PR966972 (AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005)

[23] Poulton at [36]

[24] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [40]

[25] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[26] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[27] See ss 725, 727 and 728

[28] Horizon One and the Department have raised this as another ground of objection to these proceedings. As the case proceeded only on the extension of time question – see footnote 5 – I do not need to determine the issue.

[29] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J)

[30] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J, Dawson J agreeing)

[31] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[32] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[33] James Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29]

[34] Dr Clare Anne McGrory v Australian Digital Health Agency, HiTech Recruitment Australia[2024] FWC 2593

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