Jo-Anne Finch v The Heat Group Pty Ltd
[2011] FWA 4462
•13 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5343) was lodged against this decision - refer to Full Bench decision dated 29 September 2011 [[2011] FWAFB 6729] for result of appeal.
[2011] FWA 4462 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Jo-Anne Finch
v
The Heat Group Pty Ltd
(C2011/4436)
COMMISSIONER GOOLEY | MELBOURNE, 13 JULY 2011 |
Application to deal with contraventions involving dimissal.
[1] Ms Jo-Anne Finch (the Applicant) made an application pursuant to section 365 of the Fair Work Act 2009 (FW Act) on 16 May 2011. Ms Finch was employed by the Heat Group Pty Ltd (the Respondent) until her employment was terminated on 3 March 2011. The application was lodged more than 60 days after she was dismissed.
[2] The application was listed for conference on 29 June 2011 however the Respondent objected to Fair Work Australia conducting the conference because the application was out of time and Fair Work Australia had not determined to extend the time for making the application. The matter was then listed for hearing on 21 June 2011 to determine the application for an extension of time.
[3] At the hearing Mr Frank Sanna a legal practitioner appeared with permission for Ms Finch and Mr Richard West a legal practitioner appeared with permission for the Respondent.
[4] An affidavit of Ms Finch sworn on 18 May 2011 and a supplementary affidavit sworn on 21 June 2011 were tendered without objection. Ms Finch was not required for cross examination.
[5] An affidavit of Ms Alishia Prpich, the Respondent’s solicitor, sworn on 17 June 2011 was tendered without objection. Ms Prpich was not required for cross examination.
The evidence of the Applicant
[6] Ms Finch alleges her employment was terminated due to her illness. 1 She advised that she contacted an advisory line about her entitlements.2 She then wrote to the Respondent’s Managing Director about her entitlements.3 She then wrote to the Chairman of the Respondent on 1 March 2011 about her concerns about her termination.4
[7] She then spoke to a lawyer who advised her to contact Fair Work Australia. 5 It was her evidence that until this time she was not aware of the existence of Fair Work Australia or the Fair Work Ombudsman.6
[8] She then said she contacted an advisory line and was told there was no time limit for lodging an application and she was told to contact the Fair Work Ombudsman or Fair Work Australia. 7
[9] She contacted the Fair Work Ombudsman on 13 April 2011 and was advised to contact Fair Work Australia. 8 She contacted Fair Work Australia on the same day and the phone call went through to voice mail and she left her contact details.9
[10] She did not receive a return phone call and she made a further phone call in May and was advised of the process and which forms to complete. 10
[11] Ms Finch advised that she did not automatically file an application as she wished to discuss her application with Fair Work Australia. 11
[12] In relation to the merits of her claim Ms Finch set out what occurred during her employment and said that despite the Respondent knowing she suffered from “serious depression and was a risk to her own life” the Respondent terminated her employment. 12 She claimed that the Respondent failed to pay her a number of entitlements.13
[13] Ms Finch gave evidence that she would suffer enormous prejudice if not granted an extension of time, because she will not be able to pursue her claim and she will be denied justice. Ms Finch gave evidence of exercising her workplace right by raising concerns about victimisation, bullying, harassment and gender discrimination. She says she received warnings as part of a constructive dismissal process. 14
The evidence of the Respondent
[14] Ms Prpich gave evidence that on 7 December 2010 the Respondent sent Ms Finch a letter in which it was noted that she had last worked on 11 October 2006 and that she currently had no work capacity and that there were no reasonable prospects of her returning to work. The Respondent advised that it was considering terminating her employment and asked Ms Finch to provide any information, including any medical assessment that was relevant for a proper consideration of her employment. 15
[15] As no response was received, a letter of termination was forwarded to Ms Finch on 20 January 2011. 16 This letter said Ms Finch’s employment would end on 8 January 2011.
[16] On 28 January 2011 Ms Finch emailed the Respondent and asked about her entitlements and questioned how the termination date could predate the letter. 17
[17] A further letter of termination was forwarded on 3 February 2011 which advised that the date of effect of the termination was 3 March 2011. This letter advised Ms Finch that she had no accrued entitlements. 18
[18] Evidence was given about litigation between Ms Finch and the Respondent:
1. On 1 December 2006 Ms Finch lodged an application pursuant to the Equal Opportunity Act 1995 (Vic). On 29 June 2010 Her Honour Judge Harbison dismissed the Applicant’s claim. (the VCAT decision)
2. On 12 July 2010 the Respondent applied for costs order in respect of the application. On 31 January 2011 Ms Finch was ordered to pay two thirds of the Respondents costs. (the costs order)
3. On 27 July 2010 Ms Finch sought leave to appeal the VCAT decision. The Court of Appeal dismissed the application. (the Court of Appeal decision)
4. On 28 February 2011 Ms Finch sought leave to appeal the costs order. The Court of Appeal dismissed the application. (the Court of Appeal costs decision)
5. On 4 March 2011 Ms Finch sought special leave of the High Court to appeal the Court of Appeal decision. This application was dismissed.
6. On 20 April 2011 Ms Finch applied to have the stay on the costs order to the High Court. The application was dismissed.
7. On 6 May 2011 Ms Finch sought special leave to appeal the Court of Appeal costs decision to the High Court. 19
The Applicant’s submissions
[19] Mr Sanna submitted that as Ms Finch had made an application for an extension of time when she filed her application, and as her application was accepted, an extension of time had already been granted. 20 Further, as a notice of listing had been sent for the conference on 29 June 2011 Fair Work Australia had extended time.21
[20] Mr Sanna submitted that Ms Finch was self represented and there was some confusion as to the time. 22 Further he submitted that she was only two weeks late. He submitted that there was no prejudice to the employer.23
[21] Mr Sanna relied on Ms Finch’s affidavits which explained why she was late filing the application. He also relied upon her evidence to support his submission about the merits of her claim which he characterised as an unfair dismissal claim. 24
[22] Mr Sanna was not able to articulate the basis of Ms Finch’s claim. Her application did not set out which sections of Part 3-1 of the FW Act the Respondent was alleged to have breached as she referred only to 3(1)(a)(i)(ii) and (iii) and 3(1)(b).
[23] In her application, Ms Finch described the contravention as follows:
“I made a complaint of harassment, gender discrimination, witnessing and sexual harassment and victimisation. I was then victimised by receiving unjust warnings with no right of reply and alleged company policies were not followed with any of my complaints. I then became ill and was put on stress leave. I then received a further warning after my doctor provided a letter to the company and I had made an EOC complaint.”
[24] Mr Sanna advised that he had only been recently briefed and was unable to provide details about the nature of her complaint. When pressed, he made reference to events that occurred prior to October 2006. When asked if the matters complained of overlapped the matters that had been considered by VCAT, Mr Sanna said any overlap would be insignificant. 25
[25] In response to my questions about the nature of Ms Finch’s claim Mr Sanna advised that Ms Finch was treated badly at work, further, there was a breach of contract, a breach of the award as well as being bullied. 26 Further he submitted that she was denied “a basic freedom of association within the workplace .......in that she was restricted and unable to express her concerns, her rights and she was basically gagged when she felt that she needed to say something and she didn’t feel that she could express her concerns freely and openly.”27
The Respondent’s submissions
[26] Mr West submitted that ignorance of the statutory limit is not an exceptional circumstance. 28 Mr West submitted that the Applicant must take active steps to find out what her rights are.29
[27] Mr West submitted that Ms Finch was on notice, from as early 28 January 2011, that her employment would be terminated. 30 Further he submitted Ms Finch is not a naive litigant. She had represented herself before the High Court31 as well as having been involved in extensive proceedings under the Equal Opportunity Act for four years32 and instructed solicitors in the Court of Appeal and High Court.
[28] While Ms Finch gave evidence of her ill health, this ill health had not prevented her conducting proceedings in the Court of Appeal and the High Court. 33
[29] Further, Mr West submitted that on 13 April 2011 Ms Finch became aware of Fair Work Australia at which point she still had 19 days to lodge her application. Mr West submitted that she chose to take no further steps until 16 May 2011.
[30] Mr West submitted that nothing in the material indicates that Ms Finch disputes the reason given by the Respondent for terminating her employment. 34 However he did accept that the letter to the Chairman did dispute the termination.
[31] Mr West accepted that there was no prejudice arising from the delay however he submitted that the application itself will cause prejudice to the Respondent. 35 He submitted that this was linked to the merits of the case.
[32] Mr West referred to the VCAT decision in which Ms Finch’s complaint was summarised. 36 He submitted that Ms Finch’s general protections complaint echoes her equal opportunity complaint. 37 Further Mr West submitted that the victimisation complaint was subject to an unsuccessful appeal to the Court of Appeal.38
[33] Mr West submitted that all these complaints predated the FW Act and therefore cannot be the subject of a general protections application. 39 Mr West accepted that the dismissal, which occurred after the commencement of the FW Act, could be the subject of a general protections application.40
[34] Mr West relied upon the adverse findings made by Her Honour Judge Harbison in the VCAT decision. He submitted that Ms Finch’s complaint was rejected entirely by Her Honour Judge Harbison primarily on the basis that she did not believe Ms Finch’s evidence and did not find Ms Finch to be a credible witness. 41
[35] Mr West submitted that it would be prejudicial to his client to have to re-litigate what had been litigated in VCAT in circumstances where VCAT rejected, in its entirety, the complaints of Ms Finch and the matters had also been the subject of unsuccessful Court of Appeal and High Court applications.
[36] Mr West submitted that it could be concluded that the complaint is lacking in merit.
Submissions in reply by the Applicant
[37] Mr Sanna sought an adjournment of two weeks to enable him to respond to Mr West’s submissions. In support of his submissions, he relied upon the late service of the affidavit of Ms Prpich. He advised that Ms Finch wished to respond to the allegations and that there had not been enough time to prepare because they had not been aware that the Respondent would put forward this degree of argument. Mr Sanna advised that his client wanted to respond exhaustively to the matters raised.
[38] This matter had been adjourned from 14 June 2011 at the Applicant’s request because her lawyer was not able to be present on 14 June 2011. Mr Sanna had in fact been briefed from as early as 7 June 2011.
[39] Despite the late service of Ms Prpich’s affidavit, it should have come as no surprise to Ms Finch that the Respondent would refer to the history of litigation between the parties in opposing the extension of time, particularly as Ms Finch had filed material which essentially sought to raise the same complaints in this proceeding that had been raised in earlier proceedings.
[40] Further the material in the affidavit was known to Ms Finch prior to the hearing and there had been no objection to the tendering of Ms Prpich’s affidavit.
[41] I declined Mr Sanna’s request for a two week adjournment. I was prepared to grant a short adjournment for him to take instructions from his client.
[42] Mr Sanna then sought to call Ms Finch to give evidence. Mr Sanna explained that his client would give evidence about the matters that could not be dealt with by VCAT.
[43] I declined to allow Mr Sanna to call Ms Finch as he had closed his case prior to Mr West making his submissions.
[44] In support of his submissions for an extension of time, Mr Sanna submitted that the matters before VCAT were not identical to the matters before Fair Work Australia. Mr Sanna submitted that there were matters that VCAT could not deal with, for example, bullying in the workplace. He submitted that this should be dealt with in this jurisdiction. 42
[45] Mr Sanna submitted that Ms Finch was not seeking to litigate matters already litigated in VCAT. For example he submitted that Ms Finch was “being treated differently because of her disability in a psychological sense at work, and that was not capable of being dealt with at VCAT and [she seeks] to deal with that matter here.” 43
[46] Further in response to the submission that the matters cannot be litigated because they predated the FW Act, Mr Sanna submitted that it would be premature to reach this conclusion and it should be determined at trial. 44
[47] It was also submitted that Ms Finch was not given an opportunity by the Respondent to establish that she was fit to return to work and this showed that the termination was not handled in a proper way. 45
[48] Mr Sanna submitted that the Respondent would not be prejudiced because the matters would not overlap and that, unlike the VCAT matter, the hearing of this application would not take 20 days.
[49] Mr Sanna further submitted that Ms Finch was ill during the period after her dismissal and she did make inquiries of Fair Work Australia. In response to the submissions that she was able conduct matters before the other courts during this time, Mr Sanna submitted that this was not an indication of her being able to run her cases efficiently. 46
[50] In deciding whether to grant an extension of time I must be satisfied that there are exceptional circumstances taking into account:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice the employer (including prejudice caused by the delay);
(d) merits of the application;
(e) fairness as between the person and other persons in a like position.
Conclusion
[51] Mr Sanna’s submissions that the extension of time application had been approved by Fair Work Australia by Fair Work Australia accepting the application and listing the matter for conference are misconceived.
[52] The FW Act makes it clear that there must be an application for an extension of time which can only be approved if there are exceptional circumstances. The acceptance by Fair Work Australia of a document does not evidence the granting of an application for an extension of time. The onus is on the Applicant to make such an application and until such an application is made and granted, Fair Work Australia does not have jurisdiction to conduct a conference of the parties. In this case, a conference was convened but prior to it taking place the Respondent advised Fair Work Australia that it objected to a conference occurring as no extension of time had been granted. Consequently the conference was cancelled and the hearing of the application for an extension of time was conducted.
[53] Ms Finch’s explanation about why she did not lodge the application within 60 days is unconvincing.
[54] There is no explanation as to why Ms Finch did not seek advice from the legal representative acting for her in her equal opportunity matter when she was notified that her employment was to be terminated.
[55] It is clear from her evidence that she did not at this point contact Fair Work Australia or the Fair Work Ombudsman because she did not know of their existence.
[56] Ms Finch gave evidence that she contacted an advisory line who told her there was no time limit for making an application to Fair Work Australia. She did not identify what advisory line she contacted. I am not convinced that an advisory line would, if given correct information, advise an employee that there were no time limits for lodging a dismissal application.
[57] On 13 April 2011 she contacted Fair Work Australia and left a message on voice mail. At that point she was still within time to lodge an application.
[58] Both the Fair Work Australia website and the Fair Work Ombudsman website advise of the time limit for unfair dismissal applications and general protections applications.
[59] It was Ms Finch’s evidence that she did not want to file an application until she had discussed it with someone at Fair Work Australia.
[60] Lack of knowledge about Fair Work Australia and the time limit for making the application do not in this case constitute exceptional circumstances.
[61] Ms Finch has had experience of legal proceedings since 2006. She has instructed solicitors as well as represented herself. She was on notice from 28 January 2011 that her employment was going to be terminated and despite her letter to the Chairman of the Respondent I do not accept that she had any expectation that the decision to terminate her employment would be reversed.
[62] Ms Finch took no steps until her 13 April 2011 phone call to pursue this application. Having not received a return phone call she took no further action until some unknown date in May when she rang Fair Work Australia and she was advised of the process. The application was then filed on 16 May 2011. She provided no explanation about why she waited over a month for a return phone call.
[63] While Ms Finch submitted that regard should be had to her illness during this time I accept the submissions that her illness did not in the same time period prevent her from pursuing her legal rights in both the Court of Appeal and the High Court. Further, no medical evidence was called to support these submissions.
[64] I accept that Ms Finch challenged her dismissal in the letter to the chairman sent nearly one month after the notice of dismissal was given. However Ms Finch did not in that letter nor in this matter dispute the reasons given by the Respondent for terminating her employment namely, that she had was not fit to return to work and that there was no reasonable prospect that she would return to work.
[65] While I accept that Ms Finch will be prejudiced if the application is refused, that is the case with all out of time applications.
[66] I accept the submissions of the Respondent that in assessing prejudice to the employer the Tribunal can have regard to more than the prejudice caused by the delay. The Respondent does not point to any prejudice arising from the delay. However the Respondent’s submission that they will be prejudiced by having to re-litigate a matter that has already been the subject of extensive litigation is compelling. While the issue of the termination of employment was not a factor in the earlier litigation, it is clear from Ms Finch’s application and submissions that much of the factual matrix of this case overlaps the factual matrix considered in the VCAT decision. I accept the submissions of the Respondent that the Respondent will be prejudiced by being required to defend claims that have already been the subject of proceedings before VCAT.
[67] While it is not generally possible in these applications to make an assessment of the merits of the case, in this matter Ms Finch has not been able to articulate how this is a general protections application.
[68] While Mr Sanna stated that he had only been able to spend some time with Ms Finch the night before the hearing 47 he had been briefed as early as 7 June 2011 as that was the date he advised Ms Finch that he could not appear for her on 14 June 2011. Mr Sanna had over a month to confer with his client about the nature of her claim.
[69] All of the conduct she complains of, apart from the termination of her employment, predates the enactment of the FW Act. When invited to explain how she, even in the most general way, puts her case she was unable to do so. The merits of this application, as articulated by Ms Finch, do not weigh in favour of granting the application.
[70] Having regard to the evidence and the submissions, I do not consider there are exceptional circumstances in this matter that warrant the granting of an extension of time. The application for an extension of time is therefore dismissed.
COMMISSIONER
Appearances:
Mr F Sanna for the Applicant
Mr R West for the Respondent
Hearing details:
2011.
Melbourne:
June 21.
1 Exhibit A1 at [2]
2 Ibid at [3]
3 Ibid at [4]
4 Ibid at [6]
5 Ibid at [7]
6 Ibid at [8]
7 Ibid at [9]
8 Ibid at [9]
9 Ibid at [11]
10 Ibid at [20]
11 Exhibit A2 at [9]
12 Ibid at [25]
13 Ibid at [27] and [28]
14 Ibid at [17]
15 Exhibit R1 at AMP 1
16 Ibid at [4]
17 Ibid at AMP 3
18 Ibid at AMP 4
19 Ibid at [8]-[24]
20 Transcript PN 10
21 Ibid PN 12
22 Ibid PN 42
23 Ibid PN 44
24 Ibid PN 49
25 Ibid PN 62
26 Ibid PN 66-67
27 Ibid PN 71
28 Ibid PN 114
29 Ibid PN 116
30 Ibid PN 127
31 Ibid PN 129
32 Ibid PN 130
33 Ibid PN 131
34 Ibid PN 135
35 Ibid PN 149
36 Ibid PN 151
37 Ibid PN 155-163
38 Ibid PN 170
39 Ibid PN 182
40 Ibid PN 182
41 Ibid PN 201-202
42 Ibid PN 226
43 Ibid PN 233
44 Ibid PN 235
45 Ibid PN 236
46 Ibid PN 246
47 Ibid PN 56
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