Jamie Rae McLeod-James v Mountain Trail Engineering Pty Ltd ATF Nicholas Edwards Family Trust T/A Mountain Trail Campers

[2018] FWC 1271

[2018] FWC 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jamie Rae McLeod-James
v
Mountain Trail Engineering Pty Ltd ATF Nicholas Edwards Family Trust T/A Mountain Trail Campers
(C2018/104)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2018

Application to deal with contraventions involving dismissal.

[1] Ms Jamie McLeod-James alleged that the termination of her employment by Mountain Trail Engineering Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. Mountain Trail denies the allegation.

[2] Ms McLeod-James’ dismissal took effect on 15 June 2016. Her general protections application lodged on 8 January 2018 was therefore not lodged within 21 days of the dismissal.

[3] At the hearing, I refused permission for Mountain Trail to be represented by a paid agent as I was not satisfied that the matter involved any particular complexity and I was not satisfied that Mountain Trail would not be able to represent itself effectively. Ms Heidi Cochrane, who was the HR Manager appearing for Mountain Trail, was familiar with the issues and had had the benefit of advice and representation. That Ms Cochrane was not an experienced advocate did not mean she could not represent Mountain Trail effectively.

[4] Ms McLeod-James sought to tender two witness statements from fellow employees. I declined to admit one of the statements because the content of the statement was not relevant to the matters to be determined. In the correspondence sent to Ms McLeod-James on 19 January 2018 she was advised that if she wished to call any witnesses they would be required to give evidence at the telephone conference/hearing. I declined to admit the other witness statement because the witness was not available for cross-examination.

[5] Ms McLeod-James also sought to rely on an impact statement prepared by Ms McLeod-James’ partner. I declined to admit this statement. Again, this witness was not available for cross-examination. Further, this witness gave opinion evidence about the impact of the dismissal on Ms McLeod-James however the evidence was of such a general nature to be of little probative value.

[6] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[8] Ms McLeod-James said that she was shocked and distressed at being dismissed. She said she suffered a breakdown as a result of the termination and bullying. She said she sought medical and legal advice and was advised to proceed with a workers compensation claim. She said she had to give priority to recovering her health.

[9] In correspondence sent to the parties on 19 January 2018, Ms McLeod-James was advised that if she wanted any medical condition to be taken into consideration she should supply a medical certificate/report. That medical certificate/report should explain how her medical condition prevented her from making the application in time.

[10] Ms McLeod-James provided a medical report dated 16 January 2018. She first saw this practitioner on 18 April 2017 some 10 months after her dismissal. That letter advised of Ms McLeod-James’ medical condition. That report also indicates that during this time Ms McLeod-James has been dealing with WorkCover and the insurer and it acknowledged the negative impact this had had on Ms McLeod-James. However it did not advise that Ms McLeod-James’ medical condition had prevented her from lodging her general protections claim. Further, no other medical certificate or report explained how her medical condition prevented her from making the application at any time in the 551 days after the 21 day time limit had passed.

[11] On 24 June 2016, Ms McLeod-James sent a detailed letter to Mountain Trail raising issues about her employment and her dismissal. She further had discussions with Mountain Trail on 29 June 2016. Further, she took steps to resolve outstanding issues about her final pay, entitlements and superannuation. On 9 August 2016, she lodged a worker’s compensation claim. While I accept that this was not without its difficulties given Ms McLeod-James health, during the period after her dismissal she started a new business.

[12] I accept that Ms McLeod-James gave priority to recovering her health however there is no cogent evidence that explained why this prevented her from lodging her claim, particularly in circumstances where she was able to attend to other work related claims. While her medical evidence advised that Ms McLeod-James was further injured by the worker’s compensation process, that cannot explain the delay from 6 July 2016 which was the last day she could have lodged this application and 9 August 2016 when she lodged her worker’s compensation claim as she had not yet been exposed to challenges arising from her worker’s compensation claim.

[13] I accept that her dismissal and her employment have caused her distress however she has failed to provide a reasonable explanation for the very lengthy delay in lodging this application. This weighs against a finding that there were exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[14] Ms McLeod-James wrote to Mountain Trail soon after her dismissal and advised that she considered that her dismissal was unfair. I am satisfied that Ms McLeod-James took some steps to dispute her dismissal. This weighs in favour of a finding of exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[15] Mountain Trail says it will be prejudiced as it will have to defend the application. It submitted that this is a small business with no dedicated human resources department. It submitted that it had already had to expend monies in this matter.

[16] While I accept that, should an extension of time be granted, Mountain Trail will be required to expend time, and if it chooses, money to defend the claim. There was no evidence called to suggest that, due to the time that had elapsed, the relevant personal were no longer available or were not able to recall the relevant events. While I accept that there will be some prejudice to Mountain Trail, I consider this a neutral consideration in determining if there are exceptional circumstances.

(d) the merits of the application;

[17] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive 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." 3

[18] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[19] In her application, Ms McLeod-James disputed Mountain Trail’s reasons for her dismissal. She makes claims under s.340, s.346 and s.352 of the Act.

[20] S.340 of the Act provides protection for employees in relation to their workplace rights. It is not clear what workplace right Ms McLeod-James alleges she has exercised or has not exercised or proposed or not proposed to exercise. S.346 provides for protection for employees in relation to his or her membership of an industrial association, his or her engagement in industrial activity or his or non-engagement in industrial activity. Again it is not clear what Ms McLeod-James relies on in relation to this claim. S.352 protects employees from being dismissed because they were temporarily absent from work. Regulation 3.01 defines temporary absence. Ms McLeod-James said that at times she did not attend work and did not provide a medical certificate but Mountain Trail did not request such evidence.

[21] In the letter of termination, Mountain Trail said that it dismissed Ms McLeod-James because of her attitude, performance and the business’ operational requirements. In her witness statement Ms Cochrane said that Ms McLeod-James was late for work on occasions and failed to comply with company policies. She said that Ms McLeod-James was dismissed for poor performance during her probationary period.

[22] Ms McLeod-James said that there was no evidence that she was performing poorly. In fact she said she improved the performance of the business over the time she had been there. She accepted that at times she had been late but she made up time and often started earlier than required or finished late.

[23] Much of what Ms McLeod-James complains about goes to the unfairness of the treatment she received and the lack of procedural fairness afforded to her by Mountain Trail in effecting her dismissal. However this is not an unfair dismissal claim. It will be necessary, for her claim to succeed, that she can articulate the basis of her claim and provide evidence to support her claim. For example, in relation to s.352 she will need to establish that she had met the requirements in Regulation 3.01. However, Ms McLeod-James was unrepresented before me and it is not clear that she has received legal advice about her claim. It may be possible that she could bring her complaint within the scope of the general protections provisions of the Act.

[24] There are factual matters which have not been tested before me. I am not satisfied therefore that Ms McLeod-James’ complaint has no prospects of success. I consider the merits to be a neutral consideration.

(e) fairness as between the person and other persons in a similar position.

[25] Ms McLeod-James relied upon a number of cases to support her claim. However, none of applicants in the cases relied upon had such a lengthy delay as Ms McLeod-James.

[26] I am not satisfied that there are any persons in a similar position. This is a neutral consideration.

Conclusion

[27] I am not satisfied that there are exceptional circumstances. Ms McLeod-James has not provided a reasonable explanation for the delay in lodging her application. That she advised Mountain Trail that she considered that her treatment was unfair, is not sufficient to find that there are exceptional circumstances. Ms McLeod-James’ application for an extension of time is therefore dismissed and hence her general protections application is dismissed. An order to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

J. McLeod-James on her own behalf.

H. Cochrane for the Respondent.

Hearing details:

2018.

Melbourne by telephone:

1 March.

<PR600810>

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 3   Ibid

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

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