Gregory Lawrence Ellens v Wellard Community Church Inc
[2023] FWC 1990
•10 AUGUST 2023
| [2023] FWC 1990 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Gregory Lawrence Ellens
v
Wellard Community Church Inc.
(C2023/3976)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 10 AUGUST 2023 |
Application to deal with contraventions involving dismissal
Issues and outcome
On 5 July 2023, Mr Gregory Lawrence Ellens (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Wellard Community Church Inc., objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act. Prior to the hearing, directions were issued to the parties concerning the application having been made out of time and that it was not clear to the Commission that the Respondent was an entity as referred to in s 338 of the Act. The Respondent subsequently objected to the application on the additional ground that it was not an entity of a type contemplated by s 338 of the Act.
It is noted that I granted permission for the Respondent to be represented. The Respondent’s Chief Executive Officer, Pastor Carolann Kelleher, was purportedly ill with cancer, and the Respondent organisation was of such small size, there was purportedly no one available to run its case. It is perhaps then unsurprising that the Respondent called no witnesses to give evidence. Whilst one witness statement was filed on behalf of the Respondent, the evidence of that witness was not relevant to the issues in contention and the Respondent decided not to rely upon the evidence of that witness. Further, I note that I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act.
In respect to the Respondent’s jurisdictional objection that it was not an entity of a type contemplated by s 338 of the Act, there is insufficient evidence before me to uphold the jurisdictional objection. It follows that the jurisdictional objection is dismissed.
Whilst the Applicant’s application was made 26 days outside of the statutory period, having considered the factors in s 366(2) of the Act, I have found that the circumstances are exceptional, and I consider it fair and equitable that time should be extended. An extension of time for making the application is therefore granted under s 366(1)(b) to 5 July 2023. The matter will now be referred to a case manager for the further programming of the matter.
Background
The broader context and events leading to the conclusion of the employment were as follows.
The Applicant immigrated from India in early 2023 to become the Associate Pastor for the Respondent. He did so with a wife and three children accompanying him and on the mutual understanding that he would be provided with accommodation by the Respondent.
The Applicant’s written employment contract dated 22 February 2023, expressed that the contract was between the Applicant, the Respondent and ‘Wellard Community Services’.[3] However, Schedule One to the Applicant’s employment contract set out that the employer was the Respondent, and that the Applicant’s position was that of Associate Pastor with duties of pastoral and community connection.[4]
The Applicant confirmed he was employed as an Associate Pastor for the Respondent. However, as part of his role he detailed having to perform the duties of a bus driver for the Wellard Early Learning Centre, dropping off and picking up children in the morning and evening.[5] The Applicant stated he also ran after school care sessions for children and was in charge of maintaining the cleanliness of the premises.[6]
The Applicant said that he checked with his immigration lawyer regarding the duties he was permitted to perform and was informed that under his visa he was only allowed to perform pastoral duties and should not be working in the day care centre.[7] The Applicant gave evidence that he informed Pastor Kelleher that he was only permitted to perform pastoral duties and should not be working in the day care due to his visa requirements.
Having been informed about his work restrictions, the Applicant stated that Pastor Kelleher advised him that his wife had to work to compensate for the hours he could not work.[8] The Applicant noted that whilst his wife commenced work with the Respondent on 20 April 2023, she was not paid for a morning shift.[9] At a later point, Pastor Kelleher is said to have informed the Applicant that his wife had to do a couple of hours work as a volunteer for her Certificate 3 childcare course and that was why his and his wife’s pay was cut.[10]
Concerning the ministry, it appears uncontroversial that the Respondent had a small congregation of between three to six people.
The Applicant said that on 18 April 2023 there was an incident in the day care centre concerning Pastor Kelleher purportedly mishandling a child. According to the Applicant, a report was written for the Education Department.[11] However, the Applicant is of the view the report was rewritten and facts tampered with in his presence. The Applicant said that he advised a person by the name of ‘Anna’ not to proceed with the unethical activity and this was conveyed to Pastor Kelleher.[12] Later that day, the Applicant was called to the office of Pastor Kelleher and provided with a letter of termination that terminated his employment at 5:00 PM that day. Accompanying the letter of termination was another letter to vacate her premises within 48 hours and to leave behind uniforms and school items that she had bought for the Applicant’s children.[13]
In its Form F8A – Response to general protections application, the Respondent states that it was unaware that the Applicant intended to raise a complaint concerning compliance with workplace laws and reporting standards, and noted that there was no evidence to support the Applicant’s allegations of tampered documents and the mishandling of children. The Respondent further detailed that there had been concerns with the Applicant’s performance and suitability for the role he was assigned to.
The Applicant conceded that he submitted an application six days late on 15 June 2023 at which time the Commission identified an error on his initial application. He notes that he filed a subsequent application on 5 July 2023 with the correct details for representation.
Having considered the Commission records, it appears that the Applicant filed an application on 15 June 2023 in matter C2023/3507, some six days late. Prior to service of the Form F8 (application) on the Respondent, the Applicant’s then-representative requested that his information be redacted from the application. The Applicant and his representative were advised that the Applicant would have to make an application seeking to redact the Form F8. That application was filed on 26 June 2023 and on instructions provided by Vice President Catanzariti on 5 July 2023, the redaction application was declined. In that same correspondence dated 5 July 2023, the Applicant was informed that the Form F8 would be served on the Respondent unless he wished to instead discontinue and lodge a new application with his representative’s details removed, but he was cautioned about late lodgement.
The Applicant discontinued his initial application by telephone on 10 July 2023. However, as noted the Applicant had made a second application under s 365 on 5 July 2023.
Consideration
3.1 Section 338 of the Act
Pursuant to s 338(1) of the Act, Part 3-1 of the Act applies to action capable of affecting, or intended to affect, an employee of the employer, and that is, briefly stated, an action:
a) taken by a constitutionally-covered entity;
b) affecting the activities, functions relationships or business of a constitutionally-covered entity;
c) consisting of advising, encouraging or inciting a constitutionally-covered entity to take, or refrain from taking, particular action in relation to another person;
d) taken in a Territory or Commonwealth place; or
e) taken by a trade and commerce employer or a Territory employer.
Section 338(2) of the Act further clarifies the types of entities that constitute a constitutionally-covered entity within the meaning of the Act as:
a) constitutional corporations;
b) the Commonwealth;
c) Commonwealth authorities;
d) bodies corporate incorporated in a Territory; and
e) organisations.
A constitutional corporation within the meaning of the Act is a corporation within the meaning of s 51(xx) of the Constitution, namely a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth.[14]
A trade and commerce employer is a national system employer within the meaning of s 14(1)(d) of the Act and is not relevant for present purposes.
The Respondent clarified that the legal name of the Respondent employer was ‘Wellard Community Church Inc.’, and that it was an incorporated association with an ASIC Association registration number A1016448F. In respect to the childcare centre arm of the Respondent, the Respondent submitted that the centre was the business of another associated entity of the Respondent, and was not the employer of the Applicant. When clarification was sought regarding the employer of the Applicant and his work for the childcare centre, the Respondent submitted that it had provided the Applicant’s services to the childcare centre (the other legal entity).
In support of its argument that it was not a constitutionally-covered entity, the Respondent referred to the ‘Association Rules of Wellard Community Church’ dated 1 September 2018 (the Rules), which provide:
4. Charitable purposes and not-for-profit status
4.1 The association will pursue the following charitable purpose:
To promote Jesus Christ as Lord and Saviour.
This will be achieved through the following aims:
i.To encourage and promote Christian beliefs and practices in Australia and Overseas without profit to any individual;
ii.To promote and join in Christian Evangelism, Fellowship, Worship, Discipleship, Discipline, Order, Unity and Love and establish an autonomous and self-supporting church based on the teaching of the Christian Scriptures.
iii.To promote Missionary work in Australia and Overseas to foster the establishment and development of Christian churches;
iv.To provide Christian and general education including the establishment and operation of Christian colleges and Schools;
v.To care for the Welfare of individuals and groups in the local community, across Australia and Overseas.
The Respondent noted that the Rules record that the Respondent receives funding from the sources set out in clause 5.3 of the Rules: (i) donations; (ii) gifts; (iii) offering; (iv) bequests; (v) grants; (vi) fundraising; (vii) interest; and (viii) any other lawful sources approved by the Board that are consistent with furthering the association’s purposes.
The Respondent opposed the proposition that it was a trading or financial corporation. In respect of it being a financial corporation, I accept that the Respondent was not a financial corporation given its pastoral remit and arguable provision of service as a childcare provider. However, it is that latter point that requires further consideration. Whilst the Respondent submitted at hearing that another unnamed associated entity ran the childcare services, there is no evidence before me to suggest that this was the case. In its Form F8A, the Respondent detailed the following:
Firstly, we want to clarify that there has been no misinterpretation or misrepresentation regarding your employment and visa conditions. We acknowledge that the church and daycare centre fall under the same ABN, making them part of the same business entity, as stated in Gregory’s contract. [15]
Furthermore, there is no evidence to substantiate a claim that the Respondent was not involved in trade – that is the provision of childcare services (a service) to generate reward such as payment. Whilst the Respondent’s submissions in respect to its purpose and Rules are not irrelevant, they are to be considered in the context of the Respondent’s activities, specifically whether those activities include trading and if so whether such trade is of a sufficiently significant proportion of its overall activities. In this respect, the Respondent brings no evidence to illuminate these appositive elements.
In the decision of Jain v Infosys Ltd, the Full Bench expressed the following view:
In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.[16]
Where the Respondent has argued in this case that it is not an entity of the type contemplated by s 338(1) of the Act, it assumes, in my view, the responsibility of adducing evidence in support of its contention. In this case, the Respondent has not presented such evidence and that therefore leads to a finding that more likely than not, it was an entity of the type referred to in s 338(1) of the Act.
3.2 Extension of time
The Applicant states that his dismissal took effect on 19 May 2023; therefore, the application was made 26 days late. Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. It has been said that proceedings not commenced in time should not be entertained.[17] However, the Commission may extend the period under s 366(1) if satisfied that there are exceptional circumstances that warrant doing so under s 366(2). This latter sub-section provides that the Commission is to take into account the following factors when determining whether there are exceptional circumstances:
(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 similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[18] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[19] 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.[20] It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[21]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[22]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.
3.3 Reason for the delay
In Pottenger v Department of Caffeine,[23] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[24] or a reasonable explanation.[25]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[26] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[27]
The Applicant attributes the delay in making the application on several factors.
First, upon his dismissal, the Applicant states that he was told by his employer that he had 28 days to find a solution and contact immigration. The Applicant said that he immediately contacted one of the board members, as he was then, of the Respondent, Pastor Nigel Godfrey, and Pastor Godfrey began to dispute the dismissal on his behalf.
Second, at the same time, the Applicant stated that his main priority was to make sure that his wife and three children had a place to stay as the family were asked to leave the employer’s premises within 48 hours from the time of dismissal.
Tendered into evidence was a letter of termination dated 19 May 2023, which set out:
Dear Mr Ellens
This is a termination letter.
Due to circumstances beyond my control, re the lack of church attendees and your inability to perform pastoral duties to the congregation I am no longer able to support you in a position in this church.
Your termination date is today the 19 May 2023 at 5.00 pm.
I am sorry that things are/ did not work out for both yourself and the church and which you all the best in your future.
You are at liberty to approach another church to see if they can take over the sponsorship.
Regards
Carolann Kelleher
Senior Executive Pastor[28]
The Applicant further relied upon a typed unsigned letter, purportedly from Pastor Kelleher, that stated:
Dear Mr and Mrs Ellens, I am sorry to say that things have not worked out for us and so I have to ask you to vacate my premises 29 Finchley Way Wellard by Sunday, 21st May 2023, where you have been staying since the 28th March 2023.
This has been a difficult time for me and due to certain characteristics of Mr Ellens I can no longer have you stay in my home.
Thankyou Mrs Ellens for your understanding my situation and I am sorry things did not work out for us.
Regards
Carolann Kelleher[29]
Third, the Applicant explained that he had left everything in India to come to Australia based on the promises made by Pastor Kelleher; therefore, he and his family were left destitute and had to seek shelter, food, and support. The Applicant expressed that he and his family had faced extremely difficult circumstances after the dismissal and as an immigrant with no means, he was hoping to be granted an extension in the interest of justice.
Fourth, the Applicant submitted that he was unaware of the Act’s protections and he was spending his time thoroughly searching for employment and arranging appointments due to his current visa requirements. However, when a friend informed him of possible protections under the Act, and that there were only 21 days not 28 days to make an application, the Applicant stated he immediately acted to make an application.
Fifth, the Applicant initially submitted his application six days late on 15 June 2023, but there was an error on his initial application such that the representative he had named did not wish to be referred to on the application. Having filed an application (Form F1) to the Commission to seek to have the name of the Applicant’s representative removed, there was some delay before a response to the application was forthcoming. Further, on advice from the Commission that the name of the representative would not be removed from the application and that his application (Form F8) would be served on the Respondent in its unamended form, the Applicant decided to discontinue his application to prevent that from occurring and to make a subsequent application. The Applicant therefore noted that his second application had been updated with details of a representative who was content to have been referred to on the application form.
With respect to the Applicant’s reasons for the delay, I consider them entirely plausible. It was not in dispute that the Applicant had immigrated from India to Australia in 2023 to assume the position of Associate Pastor with the Respondent. On arrival to this country, he was faced with a church congregation of three persons and instructed by Pastor Kelleher that he was to perform duties in a childcare centre. Come 19 May 2023, Pastor Kelleher considered it appropriate to terminate the employment relationship between the Applicant and the Respondent and thereafter instruct the Applicant to vacate the premises in which he was residing with his wife and three small children. He was allowed two days in which to vacate the premises, the act of Pastor Kelleher effectively rendering the Applicant and his family homeless. That the Applicant was preoccupied with securing accommodation in a country he had newly arrived to, whilst obtaining the basic requirements of daily living, is completely plausible in all the circumstances. It is further understandable that during the delay period the Applicant was also concerned about his immigration status and seeking a source of alternative financial support. I find no reason not to believe the Applicant’s contention that when he became aware of the protections afforded by Part 3-1 of the Act, he immediately made his initial application.
I am satisfied that the Applicant filed an application on 15 June 2023 in matter C2023/3507, some six days late. I am further satisfied that in respect of the initial application and its accompanying delay that the Applicant has provided plausible reasons explaining the reason for that delay.
I am further satisfied that the Applicant has provided a plausible reason for the delay between 15 June 2023 and 5 July 2023, the date his subsequent application under s 365 was made.
Regarding the initial application filed on 15 June 2023, I am satisfied that during the period 15 June to 26 June 2023, the Commission was processing the initial application and that come 26 June 2023 to 5 July 2023, the Commission was addressing the Applicant’s application (Form F1) to redact or remove the name of the Applicant’s representative. In correspondence from the Commission dated 5 July 2023, the redaction application was declined and in that same correspondence dated 5 July 2023, the Applicant was informed that the initial Form F8 would be served on the Respondent unless he wished to instead discontinue and lodge a new application, with his representative’s details removed. The Applicant was cautioned that a discontinuance would also give rise to the issue of late lodgement.
The Applicant discontinued his initial application by telephone on 10 July 2023. However, as noted the Applicant had promptly made a second application under s 365 on 5 July 2023, when informed that he would need to discontinue his initial application if he wanted to prevent the name of his representative being disclosed to the Respondent.
On balance, and in the circumstances of this particular case, I find the reasons for the delay are acceptable ones. This weighs toward a finding of there being exceptional circumstances.
3.4 Action taken to dispute the dismissal
After receiving the termination letter, the Applicant said he asked Pastor Kelleher on what grounds she had terminated his employment. Whilst Pastor Kelleher purportedly responded by saying that the Applicant had failed in his pastoral duties, the Applicant said that when he tried to discuss the matter further, Pastor Kelleher asked him to leave her office immediately and he did so. The Applicant notes that Pastor Godfrey disputed the dismissal on his behalf.
In circumstances where the Applicant’s evidence is uncontested, I am satisfied that whilst the Applicant questioned his dismissal, it was Pastor Godfrey who disputed the dismissal with the Respondent, on the Applicant’s behalf. I consider this factor weighs toward a finding of exceptional circumstances.
3.5 Prejudice to the employer
The Respondent submitted that an extension of time would prejudice it, given how ill the Respondent’s Chief Executive Officer was at this time. In this respect the Respondent emphasised:
a)the Senior Pastor at the time of the termination is in rapidly deteriorating health and is suffering from cancer which is being exacerbated by the stress of the application;
b)Pastor Kelleher is undergoing cancer treatment. This has taken a significant toll on her health to the point that she is currently unable to work, having had to be relieved in her duties with the Respondent; and
c)the Respondent is in a worse circumstance having to respond to the claim now than would have been the case had the claim not been delayed and the resulting prejudice must therefore be given due weight in determining whether to permit the delay.
Whilst not unsympathetic to the circumstances of Pastor Kelleher, I am not satisfied that the prejudice so described by the Respondent favours a finding of there not being exceptional circumstances. The Form F8A was comprehensively completed by Ms Ruth E Alexander, Board Member on behalf of the Respondent, who had, in exacting detail, provided a response to each of the Applicant’s assertions. In this respect, the absence of the Chief Executive Officer does not appear to have hampered or otherwise prejudiced the Respondent in the preparation of its Form F8A and therefore it might be proposed that Pastor Kelleher’s continued absence, whilst explained, may not prejudice the Respondent should the extension of time be granted. Notwithstanding, on balance, I consider this to be a neutral factor.
3.6 Merits of the application
In Telstra-Network Technology Group v Kornicki,[30] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[31]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[32] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
It is apparent that there is no contest that adverse action in the form of dismissal was taken by the Respondent against the Applicant, and that the Applicant has alleged that the adverse action was taken because of proscribed reasons, and has identified those proscribed reasons. The Applicant has also presented cogent submissions in his application in support of the Respondent’s alleged contraventions of, at least, ss 340 and 351 of the Act. It is therefore the case that the application cannot be said to be without merit.
3.7 Fairness as between the applicant and other persons in a similar position
The Applicant made submissions with respect to this factor albeit they are irrelevant to the consideration of this particular point. The Respondent did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am satisfied that the requisite exceptional circumstances exist. There are in this case more factors which weigh in favour of granting an extension than not. In my view, the circumstances are exceptional when considered together, and overall I consider it fair and equitable to extend the time in which the Applicant could make his application.
DEPUTY PRESIDENT
Appearances:
N Godfrey for the Applicant.
L Vincent for the Respondent.
Hearing details:
2023.
Perth (by telephone):
9 August.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] Digital Hearing Book Part 2, 32 (DHB Part 2).
[4] Ibid 40.
[5] Applicant’s Outline of argument: Extension of time, question 7.
[6] Ibid.
[7] Form F8 General protections application involving dismissal, question 3.1.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Fair Work Act 2009 (Cth) s 12.
[15] Form F8A – Response to general protections application, question 5.1.
[16] [2014] FWCFB 5595, [37].
[17] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20] (Nulty First Instance).
[18] (2011) 203 IR 1, 6 [15].
[19] Ibid 5 [13].
[20] Ibid 5–6 [13].
[21] Nulty First Instance (n 17) [21].
[22] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[23] [2018] FWC 3403.
[24] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[25] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[26] Stogiannidis (n 22) 165 [39].
[27] Ibid.
[28] DHB Part 2 (n 3) 48.
[29] Ibid.
[30] (1997) 140 IR 1.
[31] Ibid 11.
[32] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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