J.J v Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police
[2018] FWC 6351
•15 OCTOBER 2018
| [2018] FWC 6351 [Note: An appeal pursuant to s.604 (C2018/6196) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
J.J
v
Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police
(C2018/4244)
| COMMISSIONER PLATT | ADELAIDE, 15 OCTOBER 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Summary
Ms J.J (the Applicant) has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by the Commonwealth of Australia as represented by the Commissioner of Police T/A Australian Federal Police (AFP) on on 18 September 2012 in contravention of the general protections provisions of the Act.
This application was lodged on 31 July 2018.
The application identified that it was made beyond the 21 days from the date of dismissal and at paragraph 1.4 provided a detailed explanation of the delay which is consistent with the material subsequently filed by the Applicant.
The AFP filed a Form F8A Employer Response on 28 August 2018 which indicated that the Applicant voluntarily resigned from her employment on 18 September 2012 and that the application had been lodged 2,142 days out of time. This decision only deals with the extension of time issue.
On 22 August 2018, the Commission conducted a Directions Hearing and advised that the extension of time issue would be considered at a Hearing by video conference on 25 September 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the Applicant and Respondent who were directed to provide relevant material in support of their respective positions by 7 and 21 September 2018 respectively.
The material submitted contained the names of a number of persons, some of whom are (or where) serving members of the AFP. By consent of the parties I have determined to make an order prohibiting the publication of the names of persons who are (or were) members of the Australian Federal Police, and to anonymise the Applicant’s name, pursuant to s.594 of the Act.
Submissions
The Applicant provided a statement[1] which contained a number of attachments (including medical reports), a chronology[2] and written submissions.
The information contained in the material is relevantly summarised as follows:
· The Applicant was employed by the AFP from March 1999 until 18 September 2012 when it is contended she was forced to resign.
· A number of incidents occurred during her employment with the AFP which are detailed in her statement and Annexure A.
· On 8 November 2011 the Applicant was diagnosed with depression by Dr Raymond Burn as a result of a work related incident.
· Between 18 September 2012 and June 2014 the Applicant suffered from depression and post traumatic stress disorder and sought medical treatment.
· In June 2012 the Applicant moved to Brisbane and sought employment with the Queensland Police Service (QPS) through the PACE program, an accelerated program for existing police officers which had a series of intakes.
· On or about January 2013 the Applicant was advised by QPS that her application was unsuccessful for that intake.
· In February 2013 the Applicant via the QPS Senior Police Chaplain, sought further information on her recruitment with the QPS. The Applicant was advised that the QPS has sought documents from the AFP who had refused to release same. Until these documents were provided the QPS would not employ her.
· In March 2013 the Applicant was advised that she not been successful in her application to join the QPS PACE course, and that this was the last intake.
· On 5 March 2013 the Applicant lodged a complaint with the Commonwealth Ombudsman (Ombudsman) about number of matters including the circumstances that led to the cessation of her employment with the AFP.
· In March 2013 the Applicant was advised that the AFP had supplied documents to the QPS which had resulted in her application being rejected.
· In March 2013 the Applicant asked her relatives to correspond with the Queensland Police Minister on her behalf seeking that the QPS decision be overturned.
· Between August 2013 and mid-2015 the Applicant submits she suffered from a periodic mediterranean fever syndrome.
· Between January 2014 and June 2014 the Applicant was employed by the Queensland Corrections Service.
· In June 2014 the Applicant was employed as an RSPCA inspector.
· On 14 July 2015 the Ombudsman delivered its findings in respect of the Applicant’s complaint.
· On 22 July 2015 the AFP responded to the Ombudsman’s findings and advised that the finding would not change the AFP’s decision.
· On 22 July 2015 the Ombudsman advised the Applicant that the AFP was not bound to accept the Ombudsman’s findings. At that time the Applicant understood that the only remaining option was to go to Court but did not do so for a range of reasons including the cost and the lack of support by her then partner.
· In October 2015 the Applicant commenced working for Racing Queensland (which became the Queensland Racing Integrity Commission (QRIC)).
· In 2016 the Applicant commenced a Bachelor of Laws.
· On 25 September 2017 the Applicant resigned from her employment with Racing Queensland on the basis of stress.
· On April 2018 the Applicant withdrew from her Bachelor of Laws due to the inability to cope.
· In May 2018 the Applicant met with Dr Alana Sheehan, a Psychologist.
· In June 2018 the Applicant commenced employment as an investigator with the NSW Government.
· On 31 July 2018 the Applicant filed this application.
The Applicant submitted the following medical reports:
· A medical certificate, dated 1 March 2011, from Dr Ben Martin, regarding a physical injury and related notes referrals, reports and worker’s compensation correspondence regarding a criminal injury compensation claim in relation to the 2011 injury.
· A report by Dr Burn, dated 16 January 2012 which concerned the Cervical Spine and found no abnormality.
· A Workcover Australian Capital Territory (ACT) medical certificate by Dr Burn, dated 20 January 2012 which found multiple injuries involving broken teeth, nech (sic), right shoulder and right wrist.
· A referral for a rehabilitation medical assessment dated 2 February 2012.
· A Workcover New South Wales (NSW) medical certificate by Dr Burn, dated 21 February 2012, which was similar to the certificate dated 20 January 2012 and also requested assessment by ErgoGym.
· An ErgoGym initial assessment report by Mr James Olsen, dated 22 February 2012, which related to an assault at work and recommended an assessment with a psychologist.
· A Workcover ACT medical certificate by Dr Burn, dated 12 March 2012, which noted a severe psychological component of the injuries manifesting as depression.
· A referral from Dr Burn dated 13 March 2012.
· An ErgoGym progress report by Ms Tanya Stewart, dated 30 March 2012, which recorded:
· The Applicant’s advice that she had been certified as unfit for work from 9 March to 28 April 2012 inclusive;
· Noted a lower level of confidence since her initial assessment;
· The presence of significant psychological factors; and
· The reporting of significant anxiety and depression.
· A referral to Dr Nielsen from Dr Burn, dated 3 May 2012, which described the Applicant’s condition and noted physical pain and depression.
· A Workcover NSW medical certificate from Dr Burn, dated 13 June 2012, noting that the Applicant was fit for suitable duties between May 2012 and 8 July 2012 and for pre-injury duties from 9 July 2012.
· An ErgoGym closure Report from Ms Dianna Howell, dated 4 June 2012.
· A medical certificate dated 6 September 2012 by Dr Vanessa Magrath which certifies that the Applicant was suffering from a stress related medical condition.
The Applicant submitted that there were three reasons which were relevant in explaining the delay in making her application:
· Her complaint to the Ombudsman and the period over which that complaint was dealt with.
· The medical condition of the Applicant over the entire period; and
· The Applicant’s difficulty in obtaining alternative specialist employment with the Queensland Police Service.
The Applicant also contended that:
· Her response to the show cause notice dated 10 September 2012, and her complaint to the Ombudsman was evidence of action being taken to dispute the dismissal.
· The delay will not cause prejudice to the AFP as the relevant officers of the AFP remain employed.
· The merits of the matter weigh in favour of the granting of an extension of time.
· Fairness between the person and others in a like position is a neutral consideration.
The AFP provided written submissions which are relevantly summarised as follows:
· The period of delay is almost 6 years.
· The Applicant’s circumstances are not exceptional.
· The Applicant’s evidence indicates that she did not contemplate making a claim until 4 to 5 years after the cessation of the employment.
· The chronology indicates that the Applicant was able to lodge applications for employment (QPS), run a business and commence a Bachelor of Laws, and this is inconsistent with the submission that the Applicant was unable to lodge this application earlier.
· The explanation provided by the Applicant is inadequate and does not explain all of the delay.
· The evidence submitted by the Applicant is insufficient to establish that she had a severe medical condition which impacted her capacity to lodge this application until 31 July 2018. The Applicant was not incapacitated to the point that she could not have lodged an application.
· The first action taken to contest the dismissal was the lodgement of this application.
· Prejudice would be suffered by the AFP as a result of the passage of time on the memories of potential witnesses.
· The application lacks merit as the Applicant resigned.
· Fairness between the Applicant and others in a like position should weigh against the granting of an extension of time.
A Hearing was conducted by way of video conference on 25 September 2018. The Applicant was represented by Mr Mark McKenney (of counsel) and the AFP was represented by Ms Sarah Wright from the Australian Government Solicitor. Permission was granted pursuant to s.596 of the Act.
The Applicant gave evidence and was cross examined. The Applicant’s evidence was that she was quite unwell in 2012 and was under a lot of pressure as a result of her experiences at the AFP, the sale of her house, the death of family members and she was generally unwell.
The Applicant engaged the Police Association to assist her with the AFP show cause process that led to the cessation of her employment.
The Applicant also reached out to the AFP Human Resources division, and the Ombudsman in an effort to return to her employment with the AFP.
This application was not made until after she sold her house in July 2017 as she did not previously have the means to fund the application.
In cross examination the Applicant advised:
· She applied to join the QPS in July 2012 prior to the cessation of the employment with the AFP.
· Her house was put on the market in mid-2012 prior to the show cause notice being issued by the AFP.
· She had completed about half of her Bachelor of Laws degree.
· She instructed a solicitor in respect of a criminal injuries compensation claim between 2012 – 2014.
· She received legal advice in relation to this application at the end of 2017 or early 2018.
· She lodged a bullying complaint against the QRIC and contacted the Fair Work Ombudsman in relation to that complaint.
The Applicant reiterated her submissions and contended that the requirements in Nulty v Blue Star Group Pty Ltd[3] were met.
The AFP reiterated its written submissions and further contended that the onus rested upon the Applicant, the evidence did not support the contention that the Applicant’s medical condition significantly affected her ability to lodge the claim, that there was no reason to await the outcome of the Ombudsman’s investigation, and that the delay was considerable.
The AFP opposed the application and reiterated it submissions that no exceptional circumstances existed such that the extension of time application should be granted.
Applicable Law
Section 366 of the Act relevantly states:
“Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
Based on the material before me, the Applicant’s employment with the AFP ceased on 18 September 2012. This general protections application was made about 5 years, 9 months and 21 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
A majority of the medical evidence provided relates to the period prior to the cessation of employment with the AFP however I accept it insofar as it provides context.
The medical evidence indicates that at the time of the cessation of employment on 18 September 2012 the Applicant was not suffering from a medical condition that prevented her from performing work or lodging a claim. This arises from Dr Burn’s report dated 13 June 2012.
I accept that the Applicant was suffering from a stress related medical condition on or about 6 September 2012. This arises from Dr Macgrath’s certificate dated 6 September 2012.
The other references to the Applicant’s medical condition are not supported by medical certificates or reports. No information has been provided as to how long these conditions were present or how the medical conditions prevented the making of this application earlier: Shellum v Grill’d Pty Ltd T/A Grill’d Health Burgers.[5]
I accept that for some portions of the period of the delay the Applicant was suffering from a medical condition. However, based on the information before me, the broad assertion made at the Hearing that the Applicant was unwell over the entire period such that she could not make this application earlier is not sustainable.
It is apparent that the Applicant was able to seek professional and legal advice, lodge and prosecute complaints with the Ombudsman and later with QRIC, work as a full time employee for extended periods and complete half a Bachelor of Laws degree. That the Applicant had capacity to engage in such conduct is inconsistent with her submission that she was unable to lodge her complaint at any time before July 2018.
The Applicant contended that part of the delay was occasioned by the Ombudsman’s investigation of the Applicant’s complaint between 5 March 2015 and 14 July 2015 (with the AFP response and the final communication by the Ombudsman taking place on 22 July 2015). I accept that the Applicant placed great stock on the Ombudsman’s capacity to resolve her dispute with the AFP.
The Applicant submitted that it was not until her house was sold in July 2017 that she could afford to fund this application. I observe the Full Bench’s decision in Ballarat Truck Centre Pty Ltd v Melissa Kerr[6], and note that it was not out of the ordinary course, unusual, special or uncommon for a person who has been dismissed to suffer a lack of funds.
I find parts of the delay have not been explained. The failure of the Applicant to provide a credible explanation for any part of the delay tends to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters.[7]
Any action taken by the person to dispute the dismissal
I accept that the complaint made by the Applicant to the Ombudsman on 5 March 2015 and delivered on 14 July 2015 (with the AFP response and the final communication by the Ombudsman taking place on 22 July 2015) was an action taken to contest the dismissal.
The only other action taken to contest the dismissal was the lodgement of this application on 31 July 2018.
Prejudice to the employer (including prejudice caused by the delay)
I accept that the delay of 5 years, 9 months and 21 days would result in considerable prejudice as a result of the potential diminution of the memories of the witnesses.
The merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
The delay in this matter is extreme, and consideration of fairness relative to other persons in similar positions is a factor which weighs against the extension of time.
Conclusion
I have considered all the material before me and I am not satisfied that the Applicant’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order5 reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr M McKenney on behalf of the Applicant.
Ms S Wright on behalf of the Respondent.
Hearing details:
2018.
Adelaide.
25 September
<PR701287>
[1] Exhibit A1.
[2] Exhibit A2.
[3] [2011] FWAFB 975.
[4] [2011] FWAFB 975.
[5] [2017] FWCFB 3893.
[6] [2011] FWAFB 5645.
[7] [2018] FWCFB 901.
Printed by authority of the Commonwealth Government Printer
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