Kerrie-Ann Bullock v Blue Care
[2022] FWC 958
| [2022] FWC 958 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kerrie-Ann Bullock
v
Blue Care
(C2022/382)
| DEPUTY PRESIDENT BELL | MELBOURNE, 6 MAY 2022 |
General protections dismissal dispute – application filed out of time – circumstances not exceptional - application dismissed.
Ms Kerrie-Ann Bullock (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Blue Care Central Support in contravention of Part 3-1 of the FW Act. During the hearing on 29 April 2022 the Respondent name was confirmed as Blue Care (Respondent). I have utilised the discretion in s.586 of the FW Act to amend Ms Bullock’s application accordingly.
Section 366(1) of the FW Act provides that such an application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The Applicant’s material was filed on 23 March 2022. Any evidence by the Respondent was required to be filed by 4 April. None was filed although, belatedly, on the day of the hearing before me the Respondent filed submissions which annexed a single-page letter, which I’ll return to below. The matter was initially listed for hearing before another Member on 20 April 2022. Upon being reallocated to me, the hearing date was adjourned to 29 April 2022.
It is a matter of record that the application was made on 9 January 2022.
In her application, the Applicant expressed some uncertainty about the date when the dismissal took effect. Her application stated the date of dismissal was “14/09/21 ??”. In relation to this question, the Applicant’s evidence describes conversations beginning in around 31 August 2021 to the effect that the Applicant wished to cut her hours down to concentrate on her own work. On the Applicant’s evidence, she was told she needed to resign. The Applicant then states, and I accept, that the company vehicle and phone she had used were collected on 14 September 2021 and that she was not given any more work after that date.
The Respondent’s submissions annexed a letter dated 17 September 2021 titled “Acknowledgement of Resignation”. It refers to a conversation in which the Applicant allegedly gave a resignation “verbally” on 1 September 2021 to a staff member of the Respondent. It also states the last day of employment was 15 September 2021. As the letter is suggestive of a resignation, it raised an anterior issue as to whether I have jurisdiction to hear the matter on the basis that there was no termination at the initiative of the employer.[1] At the hearing, however, the letter was not sought to be tendered (whether through Ms Bullock or otherwise), nor was it put to Ms Bullock. Ms Bullock was not required for cross-examination.
Notwithstanding that the letter had not been put to Ms Bullock, with Ms Bullock having become aware of it she stated, as part of her oral evidence, that she had not received that letter and had not seen it before the day of the hearing. She reiterated her version of the dismissal. I accept her evidence, noting it was unchallenged.
Having regard to the matters I have referred to above, I find that the dismissal took effect on 14 September 2021.
The final day of the 21 day period was therefore 5 October 2021, which does not include the day on which the dismissal took effect. [2] As the application was made on 9 January 2022, it was made about 96 days late.
The application having 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.
Under section 366(2) of the FW 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 5 October 2021. The delay is the period commencing immediately after that time until the date the application was lodged, 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]
The Applicant’s Form F8 application submitted that the delay was due to settlement discussions she was attempting to complete with the Respondent. The form stated:
“Have been corresponding with them personally, now each time I ring they tell me it will be settled soon. I was contacted just before Christmas & told that it would be finalized before Christmas, but it is still on going. I contacted them again and below is the response I received on Friday 7th January 2022.”
The Applicant’s witness statement relevantly stated:
“S.366(2) The reason for my delay, was that I had been corresponding with the People’s Advisory Team and I was given the impression by them that my matter would be dealt with quickly, as I had been terminated outside of any processes. It was the People’s Advisory Team that advised me to take the matter further, and that they were sympathetic and was going to help me solve the issue. Hence why I did not contact Fair Works straight away.
I contacted the People’s Advisory Team several times by phone, the first time being the 23/9/21 regarding my pay that had not been paid and got talking to the lady on the phone, I asked her about the way I was terminated, and she advised me that I was terminated outside of any processes and that it needed to be taken further. I also rang them on the 7/10/21, 30/11/21 and again on the 6/1/22. I spoke to a Sue McGuire on the 7/10/21,8/10/21 and 14/10/21.
…
I contacted the People’s Advisory on the 23rd of September 21, regarding my pay that had not been finalized and got talking to the lady. I asked her about me being finished up the way that it happened. She advised me that I was terminated outside of any processes and that it needed to be taken further. She took my statement and told me that someone would contact me.
I have contacted the People’s Advisory several times by phone, text messages and emails to have this resolved. Each time I was told that it is being looked into. I was told on the 30/11/21 when I rang that it would be finalised before Christmas, but I am still waiting for a solution.
I did contact the Fair Works Commission on the 23/09/21 (with a Workplace Advice Service Request Form). I was advised on the 24/09/21 that they were unable to help due to high demand. I then registered with the Fair Works Ombudsman on the 30/11/21. I received a reply on the 07/01/22. I completed a F2 Application on the 06/01/22. I was advised that because I was not employed for 6 months, that I needed to fill out a F8 Form, which I did on the 09/01/22. I also contacted the People’s Advisory again on the 06/01/22 and was told that they would follow up and someone would contact me. I received an email from a Maria MacDonald on the 07/01/22 saying that she would progress my matter as quickly as possible. I have not heard anymore from them.”
I accept that evidence, so far as it shows various attempts by telephone or email by the Applicant to engage with the Respondent. I note that the Respondent filed no evidence to contradict those events and the Applicant supplied various emails between her and the Respondent that provide corroboration for a number of them.
Of greater controversy is the content of the discussions. The Respondent submits that the Applicant’s complaints were about unpaid entitlements, and were not a challenge to the dismissal as such.
The first event described by the Applicant occurred on 23 September 2021, which was well within the 21-day period required by s.366 following her dismissal. That same day, she contacted the Fair Work Commission (who advised her the following day it was unable to help.) The evidence of those events is set out above. The Respondent places emphasis on the statement “I contacted the People’s Advisory on the 23rd of September 21, regarding my pay that had not been finalized” (my emphasis). The Respondent contends this statement indicates that the post-dismissal complaints were limited to pay entitlements, not a dispute about her dismissal.
There is some force to the Respondent’s submission. The Applicant’s evidence does indicate that the primary reason she called the Respondent on 23 September 2021 was about pay but it was not put that this was the only reason. Moreover, even if that was the only reason for initiating the call, the Applicant’s evidence indicates the conversation that ensued developed to encompass matters that did relate to her termination, such as she was “terminated outside of any processes and that it needed to be taken further.” I also note that, by this stage (as reflected in the Applicant’s evidence), the Applicant was of the view that she had been peremptorily told on 31 August 2021 that she had “resigned”, a matter that the Applicant strongly disputed. In those circumstances, I’m not satisfied that the discussion on 23 September 2021 was entirely unconnected with the circumstances of how her employment came to an end, even if it was not the sole reason.
Despite having been told on 23 September 2021 by a staff member in the Respondent’s “People’s Advisory” team that “someone would contact” her, that did not occur. The next events in the chronology described by the Applicant were calls with Sue Maguire on 7 October 2021, 8 October 2021 and 14 October 2021. Ms Maguire was a Community Services Manager at the time. She did not give evidence and I note the Respondent states she is no longer employed by the Respondent. Nothing turns on this.
The Applicant did not give direct evidence of those conversations in her witness statement. So far as they concerned substantive matters, an email sent on 14 October 2021 by the Applicant indicates that those conversations culminated in an offer by the Respondent for the Applicant to work with the Respondent again. The details of the offer were not before me.
The email of 14 October 2021 states “I have decided not to take up your offer of working with Bluecare again.” Details of the earlier conversations were not included in the email but the email went on to provide reasons for the Applicant’s rejection of the offer, which related to the Applicant’s concern about how clients were allocated by the Respondent. The Respondent relies on the final sentence of the email which states “I would like a letter from Bluecare terminating my employment and would like to be compensated for the last few weeks that I have not been working” (my emphasis).
In her oral evidence, the Applicant confirmed that the only conversation of note from the events of 7, 8 and 14 October 2021 was the conversation on 14 October 2021. As to this last conversation, the Applicant’s oral evidence was to the effect that the substance of the conversation on 14 October 2021 was about the Respondent’s offer of working for Blue Care again and that the Applicant rejected it.
The Respondent again submits that the final sentence of the Applicant’s email on 14 October 2021 indicates the Applicant’s complaint was about compensation, not how her employment ended. I refer to my observations above and again conclude I am not satisfied that the sole, or even dominant, reason for this conversation was about unpaid entitlements as distinct from the circumstances of how the employment ended. The Applicant is not a lawyer and that sentence was not crafted to convey a specific legal cause of action. In circumstances where the inference sought to be drawn from it was not put to the Applicant, I’m not prepared to accept that the conversation on 14 October 2021 and email were entirely divorced about complaints about the circumstances of the termination of her employment.
On 18 October 2021, the Respondent sent an email to the Applicant acknowledging her email and saying her concerns had “been forwarded to People Advisory for advice and management”. Suffice to say, it does not appear that the promised advice and management ever occurred. The lack of almost any meaningful response in the weeks that followed reflects poorly on Blue Care. One speculates that if the Respondent replied in a timely and professional manner (even if only to formally state that the Respondent was not going to accede to the Applicant’s demands and to explain, even briefly, why), the general protections application might not have been made.
On 31 October 2021, the Applicant sent a follow up email saying “I have not heard from anyone. Have also been talking to Fair Works.” The response on 1 November 2021 was to reiterate that her email had been “sent to HR for review and consideration” and she would be “updated on progress with this.”
On 30 November 2021, the Applicant’s next email stated “I have still not heard anything, can you please advise what is happening.” The response that day was again “This has been referred to HR. I will let them know you have again contacted for an update.”
On 30 November 2021, the Applicant says she “registered with the Fair [Work] Ombudsman”.
On 6 January 2021, the Applicant called “People and Advisory” within the Respondent and was told they would “follow up” and someone would contact her. On 7 January 2021, the Respondent sent an email to the Applicant acknowledging the request for an update and stated “I will progress your matter as quickly as possible”. The Applicant’s evidence, and I accept, is that she did not hear anymore from them.
On 7 January 2022, the Applicant was contacted by the Fair Work Ombudsman. The outcome of that call was that the Applicant prepared a Form F8 to pursue a general protections application. As noted above, that application was lodged on 9 January 2022.
The Applicant’s explanation for delay is summarised in her evidence above. In essence, that was “The reason for my delay, was that I had been corresponding with the People’s Advisory Team and I was given the impression by them that my matter would be dealt with quickly, as I had been terminated outside of any processes”. With a qualification, I accept that is the reason. While I accept that the Applicant had formed the impression that her matter would be dealt with quickly by the People’s Advisory Team, I am not satisfied that those persons gave any commitment or assurance of any outcome or that the termination of employment was being stayed or anyway paused.
What action was taken by the Applicant to dispute the dismissal?
I accept that the Applicant took action to dispute the dismissal. I have set out above the various attempts by the Applicant to engage the Respondent. Those attempts included telling the Respondent she had also contacted the Fair Work Commission and Fair Work Ombudsman.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted. It submits that as Ms McGuire is no longer with the Respondent, that “may affect” the Respondent’s ability to provide evidence at the proceeding. While I accept that Ms McGuire is no longer with the Respondent, I am not satisfied on the material before me that Ms McGuire is unavailable. It would appear that the Respondent would most likely have incurred the same disadvantage had the application been made in time, as it would appear unlikely that any substantive general protections claim would have proceeded to trial by the time Ms McGuire left.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
Having examined these materials, it is evident to me that the merits of the application will 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)”.[7]
The Applicant asserts (and her evidence on this application was not challenged) that her employment was terminated following requests for a change of hours. The Respondent filed no evidence although it disputed those matters. Yet the Applicant’s own material raises questions about the Respondent’s reasons for dismissal. For example, the Applicant says in the key meeting on 31 August 2021 that she “would like to cut back my hours, as I was looking at starting my own business.” She says a discussion ensued about whether this was a “conflict of interest” or not.
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.
Are there exceptional circumstances?
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.[8] 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.[9]
The gravamen of the reasons for delay was that the Applicant had been corresponding with the Respondent and was under the impression that her matter would be dealt with quickly. While I am prepared to accept that the Applicant’s impression was formed from the matters told to her, the evidence goes no higher (and certainly from 18 October 2021) that the Respondent would consider the Applicant’s claims and would get back to her. They do not rise any higher. Many matters would need to occur if there was a response that the Applicant was willing to accept. The Respondent had explored one outcome on 14 October 2021 but that was rejected.
In Luke Tamu v Australia for UNHCR[2019] FWCFB 2384, a Full Bench stated:
“… a dismissed employee pursuing an internal review is not, of itself, a sufficient explanation for delay in meeting a statutory time frame for the lodgement of legal proceedings. Whilst a relevant factor, it must be considered amongst other relevant factors. It is not of itself an exceptional circumstance.” (citations omitted[10])
In my view, the circumstances before me are analogous to a review, although with less formality. I do not consider that the attempts to engage the Respondent are a compelling explanation for not meeting the statutory time frame and are even less so given the extended delay that ultimately took place. I accept that the Applicant made continual efforts to agitate her claims, which is a matter in her favour. I also acknowledge that there is no prejudice to the Respondent, a matter which is at least neutral if not in the Applicant’s favour. The merits of the application and the fairness between the Applicant and other persons in a similar position neither add nor detract from my consideration.
Having regard to all of the matters listed at s.366(2) of the FW Act, whether separately or in combination, 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. An order[11] to that effect will be issued with these reasons.
DEPUTY PRESIDENT
Appearances:
K Bullock on her own behalf.
M Lipsys from the Respondent.
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
April 29.
[1] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.
[2] 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.
[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] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] The citation was to Z Gao v Department of Human Services[2011] FWAFB 5605.
[11] PR741316
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