Kellie Gleeson v JBS Australia Pty Ltd

[2013] FWC 8109

[2013] FWC 8109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kellie Gleeson
v
JBS Australia Pty Ltd
(C2013/4466)

COMMISSIONER LEE MELBOURNE, 8 NOVEMBER 2013

Application to deal with contraventions involving dismissal - extension of time for lodgement of application - ss. 365, 366 Fair Work Act 2009.

[1] On 22 May 2013, Ms Kellie Gleeson (the Applicant) made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed in contravention of Part 3-1 of the Act by JBS Australia Pty Ltd (the Respondent).

[2] An application made under s.365 of the Act must also comply with s.366 of the Act.

[3] Section 366 of the Act states;

“366 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.”

[4] The applicant in her application, the Form F8 - Application for FWA to Deal with a General Protections Dispute claims she was dismissed on 30 January 2013. As detailed above, her application was lodged on 22 May 2013. This means that the application was made 91 days outside of time specified in section 366(1)(a) of the Act.

Background:

[5] The Respondent did not refer to the lateness of the application in their Form F8A - Employer’s Response to Application for FWA to Deal with a General Protections Dispute but did in their cover email dated 5 June 2013 state, “...in relation to the dates stipulated in the application, how would we proceed whereby the application has been lodged after the deadline according to the Fair Work Commission guidelines”.

[6] I wrote to the parties by letter dated14 June 2013 noting that the application was made 91 days outside of the relevant statutory time period and proposed to conduct a conference at first instance to consider compliance with section 366 of the Act and consider if there were any prospects for resolving the dispute.

[7] A telephone conference was convened by me on 26 June 2013. Mr. Thompson, solicitor for the Applicant sought permission to represent the Applicant and permission was granted. The Respondent was represented by Mr. Jaftha (HR Coordinator) and Mr Seagrott The dispute was not resolved and the Applicants’ representative indicated that they would seek an extension of time for the making of the application be granted.

[8] At the conference, agreement was reached on a process for dealing with the extension of time application. A timetable for written submissions was agreed and it was further agreed that I would determine the matter based on those written submissions. The Applicant was to file on 11 July 2013, the Respondent to file in response by 25 July 2013 and the Applicant to file in reply by 1 August 2013. It was also agreed that I would determine the matter based on those written submissions. Formal Directions were issued from my chambers dated 27 June 2013. The Directions were emailed to the Applicant, her representative and both Mr Jaftha and Mr Seagrott for the Respondent.

[9] The Applicant failed to file any material by the required date of 11 July 2013. On 14 August, my associate wrote to Mr. Thompson noting that he remained listed as the representative of the Applicant, that no documents or material had been filed in accordance with the Directions issued by me. The correspondence indicated that I was considering dismissing the application and directed the Applicant to “file and serve materials as to why [i] should not dismiss the application by 22 August 2013”.

[10] On 22 August 2013, I received correspondence from the Applicant’s representative seeking an indeterminate extension from 22 August 2013. The correspondence stated;

“We refer to your recent email. Can we please have an extension from the 22n inst. We would add, that consideration is being given to withdrawing this application but the above extension is required in order to clarify certain matters”.

[11] On the same day, I granted an extension of 7 days until 29 August 2013 to file and serve materials as to why I should not dismiss the application.

[12] On 28 August 2013, the Applicant’s solicitor sought yet a further extension of a fortnight as they had been unable to clarify their instructions on this matter and prepare the required submissions in time. The letter indicated that the while appreciating this was a further imposition that they wished to explore all possibilities of resolving the matter without recourse to a “Defended Hearing”. My Associate advised the Applicant’s representative by email the same day that the further request for extension was not granted and the material remained due the next day, 29 August 2013.

[13] On 29 August 2013, the Applicant’s representative filed submissions relevant to my considerations under section 366 of the Act. A further document was received on 30 August 2013. These were the submissions that were due to be filed in accordance with the Directions on 11 July 2013. No explanation was given as to why the original Directions were not complied with, as was requested in my correspondence of 14 August 2013.

[14] There was no contact whatsoever from the Applicant’s representative indicating an inability to meet the timelines for filing. As discussed above the Applicant’s representative was present and agreed with the timelines that were set at the telephone conference and was sent a copy of the written Directions. Overall, the conduct of the Applicant’s representative has demonstrated little respect for the Fair Work Commission.

Consideration:

[15] I have considered the submissions filed by the Applicant’s representative in support of an extension of time against the criteria in section 366 of the Act.

[16] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. In considering what are exceptional circumstances I have adopted the approach of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 1, where it was stated that;

“In summary, the expression “exceptional circumstances” 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.” 2

Subsection 366(2)(a) - the reason for the delay;

[17] The Applicant’s submissions state that the reason for the delay was as follows:

“The applicant instructs that she has suffered a significant psychological reaction to the circumstances of her dismissal, which has resulted in her being referred for a Mental Health Plan (copy referral enclosed).

The Applicant instructs that such a psychological reaction prevented her from conveying proper instructions and otherwise acting in a timely and appropriate manner with regard to the filing of her application.”

[18] A copy of the mental health plan of the Applicant was attached to the submissions. That mental health plan is dated 28 August 2013. The covering letter from the medical practitioner (which was received by me on 30 August 2013) to the Applicant’s solicitor indicates that the Applicant was referred for urgent counselling on 28 August 2013. The mental health plan refers to the Applicant’s reaction to a phone call the previous day, presumably 27 August 2013, from CGU.

[19] The application was made 91 days out of time. The application should have been made on or before 20 February 2013. It was made on 22 May 2013. There is no explanation as to why the application was not made during that time. The only reference to the relevant time period in any of the materials is in the Form F8 where the Applicant stated:

“It is now the 21st of May 2013 and a friend told me about Fair Work Australia and this is why I am writing to you.”

[20] Ignorance of the timeframe itself is not sufficient to justify an extension of time. I find that there is no reason for the delay that could be considered exceptional.

Subsection 366(b) - any action taken by the person to dispute the dismissal;

[21] The Applicant’s submission on this matter is as follows:

“The applicant instructs that she disputed the dismissal at the relevant time and has maintained in all communications with her employer that such dismissal was wrong”.

[22] However, there is was no evidence provided to me to support this contention. In the circumstances, I cannot find that there was any action taken to dispute the dismissal during the relevant period.

Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay);

[23] The Applicant submits that;

“The employer has written records of the circumstances of the Applicants employment and dismissal and that there is no suggestion that relevant witnesses or other evidence are no longer available to the Employer”.

[24] An employer must produce evidence to demonstrate prejudice. 3 There is no evidence of prejudice as the Respondent has not filed any materials given the non-compliance of the Applicant with the Directions. In the circumstances, I find that there is no prejudice to the employer, though I note the Respondent has not had the opportunity to respond on this point.

Subsection 366(d) - merits of the application;

[25] On this point, the Applicant’s submission is as follows:

“The applicant submits, that her dismissal arose from an injury which was sustained during the course of her employment and was at the time of her dismissal, the subject of an application pursuant to the Accident Compensation Act 1985. The purported termination is in breach of Section 194(2) of the Accident Compensation Act 1985”.

[26] I note that the submissions make no attempt to refer to a relevant provision of the general protections provisions of the Act and neither is this referred to in the application, the Form F8.

[27] The respondents Form F8A stated the reason for the dismissal was that the Applicant was not “the right fit for the business” and that she was “dimissed during probation”.

[28] There is nothing in the materials to suggest there is a contest that the Applicant suffered an injury and that this occasioned an absence from work. In that context, I assume that the Applicant relies on section 352 of the Act “Temporary Absence, Illness or Injury” as the relevant general protection. However in the circumstances, there is insufficient material to consider the merits of the application as other than a neutral consideration.

Subsection 366(e) - fairness as between the person and other persons in a like position.

[29] The Applicant submits that there is no issue of fairness that adversely affects the Applicant’s position.

Conclusion

[30] Having considered the submissions of the Applicant, I do not consider there to be exceptional circumstances for the delay of 91 days in filing the application (between the date of dismissal on 20 February 2013 and lodgement of the application on 22 May 2013). There is no evidence that the Applicant disputed the dismissal until the time the application was made. There is no prejudice to the Respondent with allowing the extension of time application. The question of merit is a neutral consideration. Having considered all of the factors to which I am to have regard, the only consideration weighing in favour of granting an extension is that there is no prejudice to the Respondent. Overall, I do not consider that there are exceptional circumstances that would warrant granting an extension of time. The application is therefore dismissed on that basis.

COMMISSIONER

 1   [2007] AIRC 848

 2   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848, [10]

 3   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543329>