Elena Covalciuc v Philmac Pty Ltd
[2019] FWC 7263
•21 OCTOBER 2019
| [2019] FWC 7263 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Elena Covalciuc
v
Philmac Pty Ltd
(C2019/1823)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 21 OCTOBER 2019 |
Application to deal with contraventions involving dismissal - extension of time.
[1] This decision concerns an application by Ms Elena Covalciuc under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] I find that the date that Ms Covalciuc’s employment ended was 31 December 2016. Her application was lodged on 21 March 2019. The 21st day following the date Ms Covalciuc’s employment ended was midnight on 21 January 2017. This was a Saturday. In accordance with section 36(2) of the Acts Interpretation Act 1901 (Cth), 1 the timeframe for lodgement was therefore extended to the following business day. Accordingly, the period of 21 days for lodgement ended at midnight on 23 January 2017 and the application was therefore lodged 787 days out of time. Ms Covalciuc seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.
[3] On 15 and 19 August 2019 I conducted the proceeding by way of determinative conference via telephone as Ms Covalciuc presently resides in Moldava. Ms Covalciuc appeared on her own behalf and gave evidence. Ms Elizabeth Williamson, Mental Health Social Worker, gave evidence for Ms Covalciuc. Mr McMahon appeared on behalf of the company. Ms Anfiteatro gave evidence for the company.
Identity of the employer
[4] Ms Covalciuc filed her application naming Phimac Pty Ltd as the employer. The response filed by the company indicates that the correct name of the employer is Philmac Pty Ltd. It was agreed by both parties at the determinative conference that the correct name of the employer is Philmac Pty Ltd. Pursuant to s.586 of the Act the application is amended to the extent that the true legal employer is correctly identified.
Proceedings
[5] Directions in this matter were first made on 10 April 2019, directing the filing of material by the parties and listing the matter for hearing on 16 May 2019. Ms Covalciuc sought these dates be vacated and the hearing be adjourned to allow her time to produce medical information she considered relevant to the proceedings. This request was granted and the matter was relisted for hearing on 24 June 2019. A further adjournment request for this purpose was then made by Ms Covalciuc and granted, with the matter ultimately proceeding to determinative conference on 15 and 19 August 2019.
[6] Ms Covalciuc filed a large volume of material in the proceeding, much of which went to matters outside the jurisdiction of the Commission and which is unrelated to the present application. Ms Covalciuc appeared to be agitating a range of matters in addition to her general protections claim, including migration law matters, taxation law matters, insurance law matters, banking matters and matters asserted to arise under modern slavery legislation. She sought a wide range of remedies, none of which are within the power of the Commission to grant. None of the material filed was indexed or ordered. As a consequence, the Commission prepared an index of the documents filed by Ms Covalciuc (Document List) and provided it to Ms Covalciuc to confirm that it was a complete list of the documents upon which she sought to rely. At the determinative conference Ms Covalciuc confirmed that the Document List was complete and included all the documents upon which she wished to rely.
[7] Subsequent to the conclusion of the determinative conference it came to the Commission’s attention that Ms Covalciuc had earlier filed hard copy documents via post in the Adelaide Registry of the Commission which contained certain documents not included in the Document List (Hard Copy Documents). The Hard Copy Documents were received by the Adelaide Registry on 27 March 2019.
[8] On 27 August 2019 my associate wrote to the parties regarding the Hard Copy Documents and sought advice from Ms Covalciuc as to whether she sought to rely on any of the additional documents and, if so, whether she sought to provide further submissions on them.
[9] On 3 September 2019 Ms Covalciuc advised chambers that she sought to rely upon a number of the Hard Copy Documents. On 6 September 2019 Ms Covalciuc advised that she also sought to provide submissions on the Hard Copy Documents.
[10] I issued Directions to the parties on 9 September 2019 in relation to the Hard Copy Documents. Ms Covalciuc was required to provide submissions by 16 September 2019 with the company to provide a response by 23 September 2019. Ms Covalciuc did not provide submissions in accordance with these Directions until 18 September 2019. The company provided their response in accordance with the Directions on 23 September 2019.
Background
[11] Ms Covalciuc grew up in Moldova and says she was recruited from Europe in 2013 to work in Australia. She commenced employment with the company in South Australia on 15 December 2014 in the role of Procurement Officer, initially for the period 15 December 2014 until 27 March 2015 on a maximum term contract. Documents produced by the company 2 demonstrate that Ms Covalciuc was then engaged on a series of four further maximum term contracts for the periods 28 March 2015 to 18 December 2015, 19 December 2015 to 25 March 2016, 26 March 2016 to 29 July 2016 and 30 July 2016 to 31 December 2016 (Final Contract Period). Under cross examination Ms Covalciuc accepted that she was employed for these periods under the five contracts produced by the company. She accepted that her employment was pursuant to a number of maximum term contracts and that the Final Contract Period expired on 31 December 2016.
[12] However, Ms Covalciuc says in her material that her employment ended on 9 December 2016. The company says it ended on 31 December 2016 at the conclusion of the Final Contract Period. It is uncontested that on 9 December 2016 there was a meeting regarding the cessation of Ms Covalciuc’s employment. Ms Anfiteatro gave evidence that at this meeting Ms Covalciuc was advised that her employment would cease at the conclusion of the Final Contract Period on 31 December 2016, as her position of Procurement Officer was no longer required. She also gave evidence that she advised Ms Covalciuc she was not required to attend work for the remainder of her contract period but would be paid until the contract expiry date of 31 December 2016. Ms Anfiteatro confirmed this in a letter to Ms Covalciuc dated 21 December 2016, 3 in which she refers to Ms Covalciuc being on “gardening leave” for the period 12 December to 31 December. Ms Covalciuc gave evidence that she does not recall any of the details of the meeting of 9 December 2016 after being informed that her employment with the company would end but accepted that she was advised that her role was no longer required. In cross examination, Ms Covalciuc accepted that her final contract had an expiry date of 31 December 2016 and that she was paid for the period 9 December 2016 – 31 December 2016 as if she had worked that period. Further, Ms Covalciuc did not challenge any of Ms Anfiteatro’s evidence. I accept Ms Anfiteatro evidence on these matters and find that Ms Covalciuc was engaged under a maximum term contract, that she was advised on 9 December 2016 that her employment would end at the conclusion of the Final Contract Period and that while she would be paid until 31 December 2016 she was not required to perform duties for the period 9 December 2016 – 31 December 2016. Accordingly, I find that the date Ms Covalciuc’s employment ended was 31 December 2016.
Consideration
[13] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 4
[14] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 5 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.6
[15] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 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 person 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.”
Reason for the delay
[16] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 7 or a reasonable explanation.8 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.9 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.10
[17] In her application Ms Covalciuc states that the delay in lodgement was due to the delay in receiving final payment from Philmac from 9 December 2016 until 6 January 2016 and that there were miscalculations in the final payment. 11 Even if the payment was delayed until 6 January 2017 as alleged and there were miscalculations in that payment, this simply cannot provide an acceptable explanation for a delay of 787 days. In her Outline of Argument, however, Ms Covalciuc says that the reason for the delay was the “intense trauma” she suffered on the day of her dismissal.12 Ms Covalciuc says that following her dismissal she saw her general practitioner, was prescribed medication and sought the assistance of a psychologist. Ms Covalciuc gave evidence that she suffered severe anxiety and psychological trauma following the cessation of her employment with the company and says that her family had to urgently fly to Australia to care for her. Ms Covalciuc says that she underwent medical treatment, including taking anti-psychotic medication and has “only now realised what has happened to me realistically while I was employed at this company in Australia.”13She gave evidence that she was suicidal in 2018 and again in 2019, was hospitalised for short periods of time “several times” and was prescribed anti-psychotic mediation from her general practitioner in 2018. She says that she is still under medical treatment for severe anxiety and is taking medication and struggles on a day to day basis. She says that she had no capacity to lodge her application earlier than she did due to the psychological damage she had suffered whilst employed by Philmac and that she was so traumatised by her dismissal that she simply could not deal with any matters to do with Philmac. She also gave evidence that she was physically incapable of lodging her application earlier due to domestic violence.
[18] Ms Covalciuc filed a range of medical evidence. Although I have found that the date Ms Covalciuc’s employment ended was, in fact, 31 December 2016, I have had regard to medical evidence from 9 December 2016 (Medical Evidence), noting that this is the date Ms Covalciuc was advised that her employment was to end and in response to which she says she suffered intense trauma. The Medical Evidence discloses the following:
• On 17 December 2016 Ms Covalciuc attended Dr Irfan for work related stress and cardiac chest pain. Dr Irfan prescribed Diazepam and Inderal; 14
• On 21 December 2016 Ms Covalciuc attended a consultation with Ms Williamson, Mental Health Social Worker, regarding stress arising from her “recent dismissal on Dec 9th”; 15
• On 30 January 2017 Ms Covalciuc attended Dr George for review. The surgery consultation notes for this visit do not indicate that Dr George prescribed any medication relating to stress, anxiety or psychological disorder; 16
• On 31 May 2017 Ms Covalciuc attended Dr Mittelstadt to obtain a Mental Health Care Plan (Plan). The Plan includes a diagnosis of reactive depression and anxiety, states that Ms Covalciuc’s mental status examination is “normal” in all 16 criteria assessed, does not refer her to a psychiatrist, does not prescribe any mediation, does not record that Ms Covalciuc is taking any medication related to her mental health diagnosis nor indicate that Ms Covalciuc is in any way incapacitated due to mental health issues; 17
• On 3 June 2017 Ms Covalciuc attended a consultation with Ms Williamson regarding on-going stress and anxiety as a result of the cessation of employment with the company; 18
• On 14 June 2017 Ms Covalciuc attended a further consultation with Ms Williamson for counselling; 19
• On 4 July 2018 Ms Covalciuc was admitted overnight to the Royal Prince Alfred Hospital, Sydney with a diagnosis of palpitations and non-cardiac chest pain; 20
• On 9 July 2018 Ms Covalciuc attended the emergency department of the St George Hospital, Sydney, for which social work intervention was required for emotional support and practical assistance; 21
• On 13 July 2018 Ms Covalciuc was admitted overnight to the Middlemore Hospital, Auckland, New Zealand, following her swallowing glad wrap; 22
• On 20 July 2018 Ms Covalciuc was assessed by Dr Yuen at Sydney Airport Medical as being unfit to fly on that day. No reason for the unfitness is disclosed; 23 and
• Ms Covalciuc attended a cardiologist consultation on 30 August 2018 for fainting spells and ventricular extrasystoles. Ms Covalciuc was referred for ECG Holter monitoring and a repeat consultation on 3 September 2018. 24
[19] At the determinative conference Ms Covalciuc relied particularly on Ms Williamson’s statement and evidence, the Plan and the medical evidence in relation to her admission to the Royal Prince Alfred Hospital in July 2018. Ms Williamson’s evidence was, consistent with the Medical Evidence, that Ms Covalciuc consulted her on 21 December 2016, 3 June 2017 and 14 June 2017. Ms Williamson gave evidence that when Ms Covalciuc consulted her on 21 December 2016 Ms Covalciuc was highly agitated, distressed and anxious. Ms Williamson gave evidence that at the final consultation on 14 June 2017, Ms Covalciuc consulted her regarding difficulties she was having in her new employment and stated that Ms Covalciuc was stressed but rationale and capable of making decisions.
[20] Ms Covalciuc provided no evidence to support her assertion that she was subject to domestic violence and in cross examination gave evidence that she did not wish to rely upon this as a reason for the delay.
[21] The Medical Evidence filed by Ms Covalciuc does appear to indicate that she suffered some stress and depression following the meeting on 9 December 2016 and her subsequent cessation of employment on 31 December 2016. It also appears that at that time Ms Covalciuc was prescribed medication for the treatment of stress, anxiety and depression. That may provide an acceptable explanation for some initial delay in making her application. However, in my opinion, the Medical Evidence does not provide an acceptable explanation for the failure by Ms Covalciuc to lodge her application for in excess of two years after the 21-day lodgement period expired. There is no medical evidence of any illness of any kind between June 2017 and July 2018. Further, Ms Williamson’s evidence was that at her final consultation with Ms Covalciuc on 14 June 2017 Ms Covalciuc, though stressed, was rationale and capable of making decisions. There is scant evidence of any illness post July 2018. There is no evidence to support Ms Covalciuc’s assertion that she was suicidal in 2018 and 2019. The evidence regarding the three hospital admissions in July 2018 does not support this assertion, although I accept that the admission to the St George Hospital on 9 July 2018 states that social work intervention was required for emotional support. Further, on the material provided each hospital admission was overnight only. Ms Covalciuc did not provide any evidence in support of her assertion that she has undergone further medical treatment for psychological issues, including being prescribed and taking anti-psychotic medication. She provided no medical evidence to support her assertions that she is currently undergoing treatment or taking medication. As such, there is no medical evidence which explains the vast majority of the delay of 787 days. In this regard, I note that the hearing of this matter was adjourned on two occasions in order to allow Ms Covalciuc to obtain medical evidence which she considered necessary for the proper conduct of her case.
[22] Additionally, documents provided by Ms Covalciuc and her evidence at the determinative conference was that following the cessation of her employment with the company she was employed from 6 March 2017 to 9 June 2017 by Jurlique International Pty Ltd 25 and from 23 October 2017 to 23 December 2017 by Acuity Partners Pty Ltd.26 Ms Covalciuc gave evidence that she also had another period of employment from approximately May 2018 – July 2018 with a third employer. If Ms Covalciuc had sufficient capacity to apply for, obtain and attend work in these periods, it is difficult to see how she did not have sufficient capacity to lodge the application. Finally, I do not consider the fact that Ms Covalciuc “has only now realised what has happened” to be an acceptable or reasonable explanation for the delay.
[23] In my opinion, in light of all of the above matters, Ms Covalciuc has not established an acceptable or reasonable explanation for the very significant delay in lodging the application. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
[24] It is uncontested that Ms Covalciuc did not contest the cessation of her employment. 27 This weighs against the grant of an extension of time.
Prejudice to the employer
[25] The delay in lodgement in this matter is significant, in excess of two years. A long delay gives rise to a general presumption of prejudice. 28 Ms Covalciuc submitted that the company would not be subject to prejudice. The company submitted that it would be prejudiced as relevant managerial employees are no longer employed by the company and it would therefore have difficulties in obtaining relevant evidence. However, the company did not provide any evidence in support this submission. Notwithstanding that, I consider that such a significant delay does prejudice the employer. Even if relevant witnesses can be located, memories fade and recollections are less reliable after such a lengthy period of time. Further, there is prejudice in the employer being required to engage in litigation in respect of a termination of employment which it was entitled, given the passage of time and the statutory time limits which apply, to consider was uncontested. Accordingly, this weighs against the grant of an extension of time.
Merits of the application
[26] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[27] Ms Covalciuc alleges that she was subject to bullying and harassment during the course of her employment with the company. In her Outline of Argument Ms Covalciuc relies upon sections 340, 343, 344, 348, 351, 355, 362 of the Act. 29 She does not articulate how she says these sections of the Act are engaged and notwithstanding the large volume of material filed by Ms Covalciuc, other than in relation to section 340, on the material before me it is difficult to see how any of those sections are even, arguably, engaged.
[28] Earlier in her Outline of Argument, however, Ms Covalciuc alleges that her employment was ended after she made a complaint to the company regarding the bullying she alleges she was experiencing in the workplace and in respect of which she contacted the Commission. 30 Accordingly, I understand this to be an allegation that in breach of section 340 of the Act adverse action in the form of dismissal was taken against Ms Covalciuc because she made a complaint. For completeness, I note that during the determinative conference it appeared that Ms Covalciuc alleged that her employment was terminated because she submitted a report about the bullying she alleges she was experiencing in the workplace and because of a complaint she made about her manager.
[29] The company denies that it has taken adverse action against Ms Covalciuc in breach of section 340 of the Act or any other provision of Part 3-1 of the Act. Firstly, it submits that there was no dismissal, rather Ms Covalciuc’s employment ceased by effluxion of time. Secondly, it says that Ms Covalciuc did not make a complaint of any kind regarding bullying whilst employed by it nor did she submit a report alleging bullying. Ms Anfiteatro gave unchallenged evidence to this effect. Thirdly, it says that since early 2014 the company’s parent company, Aliaxis, had been undertaking a review and restructure of its procurement function globally, which concluded in December 2016. The company says it was for this reason that Ms Covalciuc was engaged on maximum term contracts. One of the outcomes of the review was that the procurement function was centralised and, as a consequence, the role of Procurement Officer held by Ms Covalciuc was no longer required. It was for this reason that upon expiry of the Final Contract Period no further offer of employment was made to Ms Covalciuc. Ms Anfiteatro gave unchallenged evidence as to these matters.
[30] Ms Covalciuc accepted under cross examination that she was employed on a maximum term contract which expired on 31 December 2016 and that notwithstanding she did not work after 9 December 2016 she was paid up until the contract expiry date as if working. None of Ms Anfitearo’s evidence, as set out above, was challenged. Accordingly, on the material before me, I consider Ms Covalciuc’s case to be weak. This weighs against the grant of an extension of time.
Fairness as between the person and another person in a like position
[31] Applications to extend time generally turn on their own facts. The parties did not bring to my attention any particular cases or other persons that may be relevant to this issue. I find the question of fairness between Ms Covalciuc and other persons a like position to be a neutral factor.
Conclusion
[32] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[33] Having regard to all of the matters that I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the very significant delay in filing the application. None of the factors in section 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[34] I decline to grant an extension of time under section 366(2). Accordingly, Ms Covalciuc’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
E Covalciuc on her own behalf
R McMahon representativefor the Respondent
Hearing details:
2019.
Melbourne:
15 and 19 August 2019
By telephone
Final written submissions:
For the Applicant: 18 September 2019
For the Respondent: 23 September 2019
Printed by authority of the Commonwealth Government Printer
<PR713546>
1 As at 20 December 2018
2 Witness statement of Fran Anfiteatro, annexures FA- 1 and FA-2
3 Witness statement of Fran Anfiteatro, annexure FA-3
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]
5 [2011] FWAFB 975
6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
7 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
8 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
9 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]
10 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
11 Form F8 – General protections application involving dismissal, Question 1.4
12 Applicant’s Outline of argument: Extension of time, Question 1d
13 Applicant’s Outline of argument: Extension of time, Question 1d
14 Applicant’s submissions filed on 10 July 2019
15 Applicant’s submissions filed on 10 July 2019
16 Applicant’s submissions filed on 10 July 2019
17 Attachment to Applicant’s Outline of argument: Extension of time
18 Letter of Ms Williamson filed by the Applicant on 3 May 2019
19 Letter of Ms Williamson filed by the Applicant on 3 May 2019
20 Attachment to Applicant’s Outline of argument: Extension of time
21 Attachment to Applicant’s Outline of argument: Extension of time
22 Attachment to Applicant’s Outline of argument: Extension of time
23 Applicant’s hard copy documents filed on 27 March 2019
24 Applicant’s hard copy documents filed on 27 March 2019
25 Attachment to Form F8 – General protections application involving dismissal
26 Attachment to Form F8 – General protections application involving dismissal
27 Applicant’s Outline of argument: Extension of time, Question 1e
28 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J)
29 Applicant’s Outline of Argument, Extension of time, Question 1h
30 Applicant’s Outline of Argument, Extension of time, Question 1e
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