Joanne Vera Mitchell v Oz Pubz Pty Ltd
[2022] FWC 1896
•16 AUGUST 2022
| [2022] FWC 1896 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Joanne Vera Mitchell
v
Oz Pubz Pty Ltd
(C2022/1029)
| DEPUTY PRESIDENT CROSS | SYDNEY, 16 AUGUST 2022 |
Application to deal with contraventions involving dismissal
On 9 February 2022, Ms Joanne Vera Mitchell (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), alleging that adverse action involving dismissal had been taken against her in contravention of the Act (the Application). The adverse action was alleged to have been taken by OzPubz, though the name of the employer was corrected in the Employers F8A Response to be Oz Pubz Pty Ltd (the Respondent), and in the absence of any dispute as to the correct name by the Applicant the Application was amended to identify the Respondent as the employer.
The Respondent filed a response to the Application on 6 March 2022, raising a jurisdictional objection to the Application being that the Application was made out of time.
Directions and Evidence
On 6 June 2022, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:
Joanne Mitchell (the Applicant) is directed to file with the Fair Work Commission, and serve on Oz Pubs Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 20 June 2022.
The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 4 July 2022.
The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 11 July 2022.
Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 4 July 2022.
The Directions were initially not complied with by the Applicant, necessitating a listing of the matter for conference at 11.00am on 11 July 2022, at which the need for compliance with the Directions was emphasized, and the parties were advised that they should consider and address the provisions of s.366(2) of the Act in their materials. Thereafter, the following documents and materials were relied upon:
(a)The Applicant relied upon her Form F8 Application, an undated statement of the Applicant, and a statement dated 13 July 2022, of Ms Kanaef, the Applicant’s representative; and
(b)The Respondent relied upon the Form F8A Response, and an email of 5 July 2022 at 4.36pm from the Respondent to my Chambers.
The Hearing
On 6 June 2022, a Notice of Listing was issued to the parties, outlining the time, date, and manner of the Jurisdictional Hearing (the Hearing). The Hearing was listed for 10:00am on 20 July 2022, via videoconference using Microsoft Teams, and in addition to the Notice of listing dispatched by the Commission, my Chambers wrote to the parties via email, advising them of the Hearing, again attaching the Notice of Listing, and requesting that parties respond to that email indicating the prospective attendees for the Hearing. This Notice of Listing contained the Directions referred to in the above paragraphs [3] – [4].
On 21 June 2022, my Chambers wrote to the Applicant via email as follows:
“Dear Parties,
I note the Applicant has not complied with Direction 1 of the Commission’s Directions issued on 6 June 2022 (attached). Please see below Direction:
1.Ms Joanne Vera Mitchell (the Applicant) is directed to file with the Fair Work Commission, and serve on OzPubz (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to the jurisdictional objection raised in this matter by 4pm on 20 June 2022.
The Applicant is required to email Chambers by 4:00pm on 22 June 2022 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c.Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Please note that any materials must be filed with the Commission via email to this address, being [email address].
Legal Name of the Respondent
I further note that consent has not been received from the Applicant to amend the legal name of the Respondent to Oz Pubz Pty Ltd, as is written on the Respondent’s Form F8A. The Applicant is requested to confirm whether they consent to changing the legal name of the Respondent as above by 4pm on 22 June 2022.”
My Chambers contacted the Applicant via telephone on 22 June 2022 requesting the filing of her submissions, and advising that should there be delay, that the Applicant may make a request for an extension of time for the filing of her submissions. On 24 June 2022, having not received a response to the above correspondence of 21 June 2022, or any extension of time request, my Chambers again wrote to the Applicant via email as follows:
“Dear Ms Mitchell,
I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 6 June 2022, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.
Chambers has contacted you via email on 21 June 2022 and via telephone on 22 June 2022 in relation to your non-compliance with Direction 1. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.
I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.
You are required to either:
·file and serve your submissions and other documents as outlined in Direction 1; or
·advise that you do not wish to file any materials; or
·make a request for an extension of time within which to file your materials, including any reason and evidence to support;
by 4:00pm on Monday, 27 June 2022.
I confirm that all correspondence with the Commission, including the filing of materials, is to be sent via email to [email address].”
Having not received a response to the above email, my Chambers contacted the Applicant via email on 30 June 2022, as follows:
“Dear Parties,
I refer to the below correspondence.
I note that the Applicant has not filed any materials in line with Direction 1 of the attached Directions. Additionally, Chambers has not received any correspondence from the Applicant to explain the delay in filing, request an extension of time or advise of the discontinuance of this matter.
The Applicant advised Chambers via telephone on 22 June 2022 that she had not seen the emails from the Commission, but would reply as soon as she got home. Chambers has not received any correspondence in reply to the emails sent on 21 June 2022 and 24 June 2022, or pursuant to the directions issued on 6 June 2022. A further attempt to contact the Applicant on 29 June 2022 was unsuccessful.
The Applicant is required to email Chambers by 4:00pm on 1 July 2022 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, your matter may be dismissed.”
Having not received a response to the above email, my Chambers contacted the parties via email on 5 July 2022, as follows:
“Dear Parties,
I refer to the abovementioned matter.
I note that neither party to this matter has filed materials in accordance with Directions 1 and 2 of the attached Directions issued on 6 June 2022.
Further, Chambers has not received a request for an extension of time for filing those materials, or other communication from the parties.
The Respondent is requested to file their materials by 4:00pm Tomorrow, 6 July 2022.
The Applicant is advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.”
In response to the above email, my Chambers received materials from the Respondent, and a response that did not include any materials or extension of time request from the Applicant. On 6 July 2022, the matter was then listed for conference at 10:00am on 11 July 2022, and the parties were notified via email and also via dispatched Notice of Listing.
Following the conference held on 11 July 2022, which all parties attended, the materials described in paragraph [4] of this Decision were filed.
The Hearing commenced at 10:00am on 20 July 2022. Neither the Applicant nor their representative had joined the Microsoft Teams meeting at commencement, and the Respondent attended following telephone contact from the Commission in respect of their non-attendance. The Applicant was contacted on seven occasions via telephone between 10:00am and 10:19am requesting her attendance, and whilst she answered the call on two occasions, and twice attended the Microsoft Teams meeting, did not otherwise make contact with Chambers.
An email was sent from my Chambers to the parties at 10:03am reattaching the Notice of Listing, and resending the Microsoft Teams details, urgently requiring the parties to attend the Hearing. The Applicant briefly attended, however the matter could not be heard as the Applicant did not participate in the Hearing, or otherwise contact Chambers to seek an adjournment. My Chambers wrote to the parties via email at 10:37 on 20 July, recounting the morning’s events and seeking confirmation from the parties that the matter could be heard on the papers:
“Dear Parties,
The above matter was listed for Hearing at 10:00am this morning.
Chambers contacted the parties shortly after 10:00am and both parties joined the call shortly thereafter. The Applicant then muted her camera and microphone while contacting her representative, at the suggestion of Chambers. After this time, the Applicant did not respond to Chambers on the Microsoft Teams Meeting, and then left the call. Chambers then spoke with the Applicant on the phone, who stated she was not able to hear anyone on the Microsoft Teams Meeting and would try to re-join the Microsoft Teams Meeting.
Further attempts to contact the Applicant were unsuccessful. At this time, the Respondent was advised of the difficulties Chambers was facing in contacting the Applicant, and the Microsoft Teams Meeting was terminated on the basis that correspondence would be sent to the parties via email.
At 10:25am the Applicant sent the below correspondence to Chambers noting that she was having difficulty using the link, and was re-downloading the Application.
In light of the difficulties contacting the Applicant that Chambers is again having, Deputy President Cross proposes to deal with this matters on the papers, without a hearing, and relying on the following materials filed by the parties:
The Applicant’s Form F8 Application, an undated statement of the Applicant, and a statement dated 13 July 2022, of Ms Kanaef, the Applicant’s representative; and
The Respondent’s Form F8A Response, and an email of 5 July 2022 at 4.36pm from the Respondent to Chambers.
Should the parties have any concerns with this approach, please advise Chambers as soon as possible.”
The Respondent replied to the above communication on 20 July 2022, advising that it was agreeable to the above course. The Applicant did not respond directly to the query from Chambers, however the Applicant’s representative otherwise sent Chambers an email on 21 July 2022 requesting information in respect of the Commission’s complaint processes. My Chambers responded to the Applicant’s representative on 22 July 2022 as follows:
“Dear [Applicant’s Representative],
I refer to the above matter, and to your correspondence below. I further refer to the email sent from Chambers to the parties at 10:37AM on 20 July 2022.
The Applicant has not replied to this communication, and an urgent response is required from either the Applicant, or the Applicant’s representative. The Applicant or their representative is required to provide their response by no later than 4:00pm today, 22 July 2022, and failing this, the course outlined by the Deputy President, being for the matter to be heard on the papers, will be adopted.
In respect of your queries regarding the Commission’s complaint process, I provide the following information for your consideration:
·Fair Hearings Practice note – this document details the processes and standards for Fair Hearings, including the obligations regarding communication between members, staff and parties: Practice note: Fair hearings | Fair Work Commission (fwc.gov.au)
·Fair Work Commission Feedback and Complaints webpage – this webpage contains various options for different categories of feedback and complaints, and outlines the process for filing such feedback or complaint: Feedback and complaints | Fair Work Commission (fwc.gov.au)
·Audio and Transcription Request information: Transcripts and recordings | Fair Work Commission (fwc.gov.au)
Chambers can assist you with any procedural queries in respect of the above.
For your records, I reattach the emails from Chambers on 6 June 2022 to the Applicant attaching and explaining the Notice of Listing for the Jurisdictional Hearing listed for Wednesday 20 July 2022.
I note that your below email does not relate directly to the above matter, and as such, does not need to copy in the Respondent. I advise that, otherwise, all communication with Chambers is required to copy in all parties to the matter. Please review the above Fair Hearings Practice Note for more information.”
To date, the Applicant and/or her representative have not responded to the above correspondence. In those circumstances, I have decided to deal with the matter on the papers.
Consideration
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
It is agreed between the parties that the dismissal took effect on Saturday 1 January 2022. As the final day of the 21 day period fell on a weekend, the timeframe is extended until the next business day,[2] and was therefore Monday 24 January 2022, and ended at midnight on that day. The Application was made on 9 February 2022. The Application was therefore made 16 days late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 January 2022. The delay is the period commencing immediately after that time until 9 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]
In the Form F8 the Applicant acknowledged that the Application was late, and outlined the following reasons for that late filing:
“An application was made within 21 days although online services were down and there was no information to help. Due to floods and other personal financial circumstances, information has now just this week been obtained to inform Jo that she is not eligible for an unfair dismissal claim. Although she started in November 2020, the pub was sold during that time. And although there is no contract restarting her entitlements, and no contract from OzPubz in general, it was hard to understand what options were applicable at the time. Given her start date from when the pub was sold, Ken has unlawfully terminated her within days of her 6 month mark. We ask for a new application under General Protections and ask for the Unfair Dismissal case to be withdrawn.”
Additionally, in the statements of the Applicant and Ms Kanaef there were mental health issues referred to as impacting both the Applicant and Ms Kanaef during the period before the filing of the Application.
In response, in the parts of the Respondent’s Form F8A Response that dealt with the out of time issue, the Respondent noted:
“The floods cited in the applicants reason to extend the application time affected the Gympie area from approximately 8th January 2022 until 12th January, allowing the applicant a further 10 days to lodge the application.”
Conclusions on Reasons for Delay
Regarding the impact of flooding on the ability to make the Application, noting there is no dispute as to the days such flooding actually impacted as identified by the Respondent, it is apparent that the impact of such flooding occurred well within the 21 day period after dismissal, and can in no way explain any of the period of delay.
While the Applicant claims to have had mental health issues, and I accept that the recent flood emergencies have been devastating and stressful, no medical evidence supporting the existence of any mental health issues before or after the dismissal of the Applicant was provided. In Rose v BMD Constructions Pty Ltd,[7] a Full Bench of Fair Work Australia, in a matter where an applicant claimed she was suffering from shock and trauma as a result of the dismissal but did not attend her doctor during the two weeks following the dismissal, and noted that she was not aware of the time limit in respect to unfair dismissal, observed:
“[10] It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.
[11] Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.”
The Applicant has failed to substantiate any level of illness or incapacity resulting from the dismissal that precluded her from advancing a claim, be it the unfair dismissal or the Application, against the Respondent. I cannot conclude that he was precluded by illness or incapacity from filing either the unfair dismissal claim or the Application within the 21 day limitation period, or thereafter.
Mere ignorance of the statutory time limit is not an exceptional circumstance,[8] and I also consider ignorance of the availability of a general protections claim, particularly where an unfair dismissal claim is first pursued but fails due to the absence of a minimum employment period, is also not an exceptional circumstance.[9]
Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for the period of the delay, and that is a matter that weighs in favour of the Respondent in this matter.
What action was taken by the Applicant to dispute the dismissal?
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. Other than merely lodging an application for an Unfair Dismissal, there was no particular agitation by the Applicant, and I would consider that this matter weighs neutrally in the assessment of exceptional circumstances in this matter.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.
What are the merits of the Application?
Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[10]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the Application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may 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.[12]
It is clear that the factor that has been accorded any weight in this matter is the absence of an acceptable reason for the delay. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[13]
Even had it been apparent, evidence of hardship and misfortune would not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[14] That is certainly not the case in this matter.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Hearing details:
Matter heard on the papers.
Final written submissions:
17 July 2022.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Acts Interpretation Act 1901 (Cth) s.36(2). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A). See also Hemi v BMD Constructions Pty Ltd[2013] FWC 3593 (unreported, Richards SDP, 12 June 2013); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock[2015] FWCFB 103 (unreported, O’Callaghan SDP, Gooley DP, Williams C, 9 January 2015); Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877 (unreported, Harrison SDP, Lawrence DP, Cambridge C, 20 March 2015).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] [2011] FWA 673.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[9] Dirkis v Staffing Office Solutions Pty Ltd [2021] FWC 2163, at [27]
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
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