Joyce Noronha-Barrett v Australian National University

[2015] FWC 5879

[2015] FWC 5879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joyce Noronha-Barrett
v
Australian National University
(C2015/2418)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 25 AUGUST 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mrs Joyce Noronha-Barrett (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 7 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the Australian National University (ANU – the Respondent) on 11 March 2015 in contravention of the general protections provisions of the Act. As the application had been lodged six days outside the statutory timeframe for lodgement, the Commission issued Directions on 9 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[1] Mrs Noronha-Barrett commenced employment with the ANU on 28 March 2011. Mrs Noronha-Barrett was engaged as a senior school administrator in the School of Archaeology and Anthropology, Research School of Humanities and the Arts, College of Arts and Social Sciences.

[1] In her application, Mrs Noronha-Barrett alleged that she was dismissed from her employment on 11 March 2015 after seeking to have her position reclassified to a higher classification level in accordance with the Australian National University Enterprise Agreement 2013-2016 1 (the Agreement) and appealing the decision not to approve her reclassification request. In her application, Mrs Noronha-Barrett contends that her dismissal was in contravention of s.340 of the Act which deals with, among other things, adverse action taken against a person in circumstances where that person exercised a workplace right.

[1] There is a fair bit of history which precedes Mrs Noronha-Barrett’s general protections application. That history commences in mid-May 2014 when Mrs Noronha-Barrett sought a reclassification of her position in accordance with the Agreement. At about the same time the ANU’s College of Arts and Social Sciences commenced a change management program. As a result of that change management program, Mrs Noronha-Barrett’s position was abolished and a new school manager position created at a higher classification level. Mrs Noronha-Barrett was subsequently invited to apply for that position and in late August 2014 was advised that her application had been unsuccessful. A few days later Mrs Noronha-Barrett was advised that her classification review request had been considered and denied. At about the same time the National Tertiary Education Union initiated a dispute on Mrs Noronha-Barrett’s behalf in accordance with clause 79 – Dispute Avoidance and Settlement of the Agreement. In subsequent developments, Ms Noronha-Barrett requested a review of the reclassification decision and advised the ANU that she was not interested in a separation package. On 18 November 2014 Mrs Noronha-Barrett was given written notice of termination, with her termination to take effect on 24 November 2014.

[1] On 20 November 2014 Mrs Noronha-Barrett filed an urgent application before start of a proceeding with the Federal Court for an injunction to stop the termination of her employment. On 21 November 2014 the ANU provided an undertaking to the Court that Mrs Noronha-Barrett’s employment would not be terminated during the notice period. On 24 November 2014 Mrs Noronha-Barrett made an application under clause 78 of the Agreement for a review of the decision that her substantive position was redundant.

[2] On 4 December 2014 Mrs Noronha-Barrett filed her application with the Federal Court seeking an interlocutory injunction. The application alleged that the ANU had breached ss.50 and 340 of the Act. The application was listed for hearing on 19 December 2014 but was adjourned after the ANU gave an undertaking not to terminate Mrs Noronha-Barrett’s employment within 14 days of the completion of its review regarding whether Mrs Noronha-Barrett’s substantive position was redundant. That review was completed on 23 February 2015 with Mrs Noronha-Barrett notified on that day of both the outcome of the review and that her employment would be terminated with effect from 25 February 2015. The date of dismissal was later amended to 11 March 2015 in accordance with the ANU’s 19 December 2014 undertaking to the Court.

[3] On 6 March 2015 Mrs Noronha-Barrett recommenced proceedings in the Federal Court and sought to amend her application for interlocutory relief to seek an order for reinstatement. On 2 April 2015, at the hearing for the application for leave to amend, the Federal Court held that following the termination of Mrs Noronha-Barrett’s employment her dispute now related to the taking of adverse action by way of dismissal and that as a result the proceedings should not continue without the dispute first being conciliated by the Commission.

[4] As previously noted, Mrs Noronha-Barrett’s general protections application was received by the Commission on 7 April 2015, which was the first working day after 2 April 2015 given the Easter period.

The Relevant Legislation

[5] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[6] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[7] In her application Mrs Noronha-Barrett briefly set out the background to her application. More particularly, Mrs Noronha-Barrett stated that she had acted promptly in contesting the termination of her employment through Court proceedings but that those proceedings have been met with a successful jurisdictional objection by the ANU. Mrs Noronha-Barrett further stated that she acted promptly in remedying the deficiency as a result of the ANU’s jurisdictional objection being upheld by the Federal Court.

[8] In her written submissions, Mrs Noronha-Barrett submitted that the actions taken through proceedings in the Federal Court were the reason for the delay in lodging her general protections application.

[9] The ANU submitted that it advised Mrs Noronha-Barrett’s legal advisers and the Federal Court at the directions hearing on 6 March 2015 of its jurisdictional objection based on s.370 of the Act. More particularly, the ANU submitted that it had advised the Court and Mrs Noronha-Barrett’s legal advisers that in its view Mrs Noronha-Barrett could not make a general protections Court application before the requirements of s.370 had been met, i.e. that the Commission had dealt with the matter and issued a certificate under s.368 of the Act. In its written submissions in the matter before the Commission the ANU emphasised that Mrs Noronha-Barrett and her representatives were put on notice five days before the termination of her employment that it would be submitting to the Federal Court that any dismissal dispute application would have to be made in accordance with s.370 of the Act.

[10] The ANU further submitted that as a consequence of its jurisdictional objection the amendment application was not pursued at that time and was adjourned until 2 April 2015 when the Federal Court accepted its submissions regarding s.370 of the Act and stayed the proceedings. The ANU highlighted that there was therefore over a month during which Mrs Noronha-Barrett and her advisers were aware that it would be submitting to the Federal Court that the proper place for her to bring a dismissal application was in the Commission and not the Federal Court. The ANU contended that Mrs Noronha-Barrett “appears to have sat on her rights, and instead decided, ultimately unsuccessfully, to chance her arm in the Federal Court.” 2

[11] The ANU contended that this procedural history is not a valid reason for the delay and that Mrs Noronha-Barrett did not act as promptly as possible to contest the termination of her employment, nor did she act promptly to do so. The ANU further contended that if she had done so she would have filed her application with the Commission within the 21 day timeframe.

[12] In her written submissions Mrs Noronha-Barrett stated that the ANU had foreshadowed a submission that there would be no jurisdiction for the Court to hear the matter unless and until the Commission had dealt with the dispute. No explanation was provided by Mrs Noronha-Barrett as to why she and her legal advisers did not heed that notice and lodge either a general protections or an unfair dismissal application with the Commission. As a minimum, I would have expected that some analysis and advice regarding the prospect of the ANU’s jurisdictional objection being successful would have been warranted in the circumstances. It is not clear from the material before the Commission whether or not such analysis was undertaken. A hedging of her bets by Mrs Noronha-Barrett would seem, albeit with the benefit of hindsight, the most appropriate course of action to have taken in the circumstances, particularly as Mrs Noronha-Barrett could have discontinued her application to the Commission if the ANU’s jurisdictional objection had not succeeded. Also relevant in this regard is that Mrs Noronha-Barrett does not rely on representative error as the reason for the delay in lodging her application.

[13] Based on the above analysis, the reasons for the delay cited by Mrs Noronha-Barrett do not support a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[14] Mrs Noronha-Barrett contends that at all relevant times she has disputed the ANU’s conduct in making her redundant and subsequently terminating her employment.

[15] The Respondent did not separately address this factor but instead dealt with it in conjunction with its submissions regarding the reason for the delay.

[16] Based on the material before the Commission it is clear that Mrs Noronha-Barrett has consistently disputed the ANU’s decision to make her substantive position redundant and not to reclassify that position. However, in circumstances where it was clear from late February 2015 that her dismissal was to take effect on 11 March 2015, it is not clear why Mrs Noronha-Barrett chose to dispute her dismissal by way of amending her Federal Court application as opposed to lodging either a general protections or an unfair dismissal application with the Commission. This is even more intriguing in circumstances where Mrs Noronha-Barrett had on 6 March 2015 been given the proverbial “heads up” by the ANU regarding the jurisdictional objection it intended to press regarding her application to amend the existing Federal Court application.

[17] The above analysis does not support a finding that there were exceptional circumstances in this case.

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

[18] Mrs Noronha-Barrett submitted that it was difficult to see how there can be any prejudice to the ANU from an extension of time.

[1] The ANU acknowledged that there is no prejudice to it caused by the delay, though it also expressed the view that it will suffer prejudice by having to expend further resources to defend the application which it would otherwise not have to do were an extension of time not granted. While this view understandable, the need to defend an application of itself does not necessarily constitute prejudice.

[1] I therefore consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[2] Mrs Noronha-Barrett contends that her application has substantial merit. In support of that contention Mrs Noronha-Barrett relied on the Outline of Submissions which had been provided to the Federal Court and the ANU on 18 December 2014 and the evidence which had been filed with the Federal Court in support of her application for an injunction.

[3] Conversely, the ANU submitted that Mrs Noronha-Barrett’s application has no merit, adding that there has been no adverse action by it against Mrs Noronha-Barrett in relation to her reclassification, redeployment or redundancy.

[4] From the above it is clear that the merits of the application are disputed. Without the benefit of hearing the submissions and evidence of the parties on this issue I am unable to form a considered view as to the merits of the application. As such, I consider this factor to be a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[5] Mrs Noronha-Barrett referred to the decision given in transcript by Senior Deputy President Acton in Ms Susan Newman and East Yarra Friendly Society Pty Limited T/A Chemist Warehouse Geelong; Rajan Grover T/A Chemist Warehouse Geelong (Newman) 3 and the decision of Deputy President McCarthy in Vanessa Pitrau v Barrick Mining Services Pty Ltd (Pitrau)4in relation to this factor. An extension of time was granted in both Newman and Pitrau.

[6] The ANU while acknowledging that there were some procedural similarities between this case and those in Newman, highlighted one significant difference which went to the reason for the delay identified by Justice North of the Federal Court regarding an application by Ms Newman in those proceedings (that decision is discussed in further detail below). In short, Justice North found the reason for the delay as a ‘misconception’ by Ms Newman’s legal representatives. As to the significant difference between the two cases, the ANU submitted that in this case “There was no misconception or mistake, but a calculated decision to press on in the Federal Court.” 5

[1] The circumstances in both Newman and Pitrau differ from those in this case in that in both of those cases the respective applicants had lodged unlawful termination applications under s.773 of the Act with the relevant Court, with the Commission having issued a certificate under s.776(3) in Ms Pitrau’s case.

[2] In respect of Ms Pitrau’s application the Federal Magistrates Court dismissed the application on the basis that the Ms Pitrau was not able to make such an application as she was employed by a national system employer. Ms Pitrau subsequently lodged an application with the Commission under s.365 of the Act and outside the statutory timeframe specified in the Act.

[3] In Ms Newman’s case, the Federal Court stated that Ms Newman was precluded by s.723 of the Act from making an unlawful termination application as she was employed by national system employer. Further, the Federal Court declined to amend Ms Newman’s application at that time as to do so she would need to allege that a certificate had been obtained from Fair Work Australia (FWA) under s.369 of the Act which, as a matter of fact, had not occurred. In his decision regarding Ms Newman’s application to amend, Justice North made the following observations:

“9 In those circumstances, the pragmatic course in this case would be for the applicant to return to FWA and make a fresh application under s 365 for FWA to deal with the dispute. FWA would then be required to conduct a conference under s 368(1). Against the background of this particular case, it is likely that such a conference would not resolve the dispute, and a certificate would issue under s 369.

10 One problem which the applicant faces in returning to FWA is the time limit on applications under s 365. The 60-day time limit prescribed by s 366(1)(a) has expired. However, s 366(1)(b) allows for FWA to extend the time under s 366(2). The exercise of the discretion to extend time under s 366(2) is a matter entirely for FWA. However, I regard the present application for an adjournment of the Court proceeding as justified because it would be surprising indeed if the present circumstances, so far as they have been outlined to the court, did not provide a basis for an extension of time under s 366(2).

11 The reason for the delay in this case was a misconception on the part of the applicant’s legal representatives as to the proper section under which the application should be brought. That mistake is not one which should be visited upon the applicant herself. Consequently, it is hoped that the matter can be rectified by the applicant making a fresh application to FWA now under s 365, and seeking an extension of time within which that application is to be made. The conference required under s 368 could then be convened, and in all likelihood, a certificate issued under s 369. If those steps are taken, and the foreshadowed result achieved, then the applicant will be in a position to amend the application in this Court in order to raise the merits of her case, which is what she has sought to do in the unsuccessful attempt so far.” 6 [Underlining added]

[1] It is not asserted by Mrs Noronha-Barrett that there was, drawing on the language of Justice North, a misconception on the part of her legal representatives as to the proper section under which her application should be brought.

[2] Given the factual differences between this case and the circumstances in Newman and Pitrau, together with the absence of an apparent misconception on the part of Mrs Noronha-Barrett’s legal representatives in this case, I do not consider that there are any fairness considerations as between Mrs Noronha-Barrett and other persons in a like position. Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[3] While I acknowledge the similarities between the circumstances in this case and those which existed in Newman and Pitrau, I consider the absence of a misconception on the part of Mrs Noronha-Barrett’s legal representatives in this case to be a significant point of difference. Given that key difference, I do not believe that I must therefore as a matter of course dutifully follow the decisions in either Newman and Pitrau in this case. Further, in circumstances where the ANU gave notice of its intended jurisdictional objection to Mrs Noronha-Barrett’s application to amend her Federal Court application several days in advance of her dismissal taking effect, I consider the reason for delay relied upon by Mrs Noronha-Barrett, i.e. the actions taken through proceedings in the Court, to be significantly undermined. As previously noted, Mrs Noronha-Barrett does not argue representative error as a reason for the delay. Had she done so, the circumstances in this case would have been much more closely aligned with those that existed in Newman.

[4] Against that background, and having considered all of the factors set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[5] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   AE406362

 2   Respondent's Submissions on Applicant's Application for an Extension of Time at paragraph 15

 3   Transcript of proceedings in C2011/6263 at PN214-220

 4   [2012] FWA 8363

 5   Respondent's Submissions on Applicant's Application for an Extension of Time at paragraphs 28-30

 6 [2011] FCA 1262

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