Lainie Chait v Church of Ubuntu
[2023] FWC 2405
•18 SEPTEMBER 2023
| [2023] FWC 2405 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lainie Chait
v
Church Of Ubuntu
(U2021/9704)
| VICE PRESIDENT ASBURY | BRISBANE, 18 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – Whether the application was filed outside of time required in s. 394(2) – Whether a further period to make the application should be granted.
Overview
Ms Lainie Chait (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) in respect of the termination of her employment by the Church of Ubuntu (the Respondent/Church). The Church raised jurisdictional objections to the application, contending that the Applicant was engaged as an independent contractor by a separate entity – the Ubuntu Wellness Clinic operated by the Vice President of the Church, Ms Karen Margaret Burge, an Individual/Sole Trader, who is the Owner/Operator of the Clinic.
On 29 August 2022, I issued a Decision[1] (Jurisdictional Decision) dismissing the jurisdictional objections and in reasons provided to the parties on 7 November 2022[2], I found that the Applicant was an employee of the Church rather than the Clinic and that the Church dismissed the Applicant on 11 October 2021. On 18 September 2022, the Respondent lodged an appeal under s. 604 of the Act against the Jurisdictional Decision, asserting errors, including in relation to the finding that the Applicant was employed by the Church and the rejection of the argument that the Applicant was an independent contractor engaged by Ms Burge/the Ubuntu Wellness Clinic.
On 30 January 2023, a Full Bench of the Commission issued a Decision[3] in the appeal finding no error in the Jurisdictional Decision or Reasons in relation to these grounds. The Jurisdictional Decision was not quashed by the Full Bench, and in relation to assertions about my conclusion that the Applicant was employed by the Church, the Full Bench said:
[39] Rather than establishing error in the Decision and/or Reasons for Decision of the Deputy President, the Appellant simply urges a different result based on extremely limited facts and assertions, while disregarding the Deputy President’s detailed and correct analysis of the relevant relationship and employer. The Deputy President followed the correct principles and the Decision was entirely unremarkable in the factual circumstances existing.
…
[46] The conclusions of the Deputy President, which we have found to be without error, based on an objective assessment of what was said and done, establish a clear intention to create legal relations, in the form of an employment relationship, between Ms Chait and the Appellant [the Church].
[47] We are not satisfied that the Appellant has identified any error in the Deputy President’s reasoning or the conclusion she reached. The Deputy President applied the law in an exhaustive and orthodox manner.
However, the Full Bench granted permission to appeal the Jurisdictional Decision, finding that before determining the jurisdictional objection and finding that the Applicant was an employee of the Church of Ubuntu, the matter of whether the application was filed within the time required in s. 394(2) of the Act should have been determined, consistent with a Decision of a Full Bench in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[4] (Herc) issued on 12 December 2022.
The issue of whether the application in the present case was filed within time, arose in circumstances where three versions of the Form F2 were filed. The first and second versions of the application were filed on 28 and 29 October 2021 – within the time required in s. 394(2) – and named Ms Karen Burge and/or the Ubuntu Wellness Clinic Newcastle as the Respondent. The third version was filed on 9 November 2021 and named as the Respondent, the Church of Ubuntu.[5] The Full Bench said:
“[51] Upon the conclusion that Ms Chait’s employer was the Appellant, the issue of whether the Application in the form of the Third Form F2 is out of time comes into focus because it recorded Ms Chait was notified of her dismissal on 11 October 2021, and the dismissal took effect immediately, but the Third Form F2 was filed on 9 November 2021, eight days outside the 21 day period for filing.
[52] Consistently with Herc, the first consideration is whether the application was made within the time required in s.394(2). Pursuant to s.607(3)(c) of the Act, we refer the matter to Deputy President Asbury to deal with it in accordance with this decision.”
The Order of the Commission was that I determine whether the Appellant’s unfair dismissal application was filed within the time required in s. 394(2) of the FW Act.
Issues for determination
The Applicant contends that her application was made within the time required in s. 394(2) of the Act on the basis that the third application filed on 9 November, simply amended the first version, which was filed within time. The Respondent contends inter alia that:
The Full Bench referred to me only the question of whether the application was made within the required time and not whether a further period should be granted;
The first and second versions of the application were withdrawn and the third version was a new application, made outside the time required in s 394(2);
The Commission as presently constituted exceeded jurisdiction in hearing and determining the jurisdictional objection in relation to whether the Applicant was an employee, in circumstances where the application was out of time and no application to extend time had been made; and
The hearing and determination of the jurisdictional objection was null and void because the Commission had no jurisdiction to hear it, because the application was made out of time and the Commission cannot decide “whether or not there are grounds to grant an extension, in retrospect, after hearing a matter without jurisdiction” and after an appeal where no extension was granted.
It is therefore necessary to determine the out of time issues within the scope of what was referred to me by the Full Bench in the appeal. It is also necessary for me to determine a decision dismissing a jurisdictional objection, is rendered invalid by the fact that it was made before the issue of whether the application was made within time is determined. Further it is necessary to determine whether the grant of a further period can regularise decision in relation to a jurisdictional objection, made before the further period is granted.
Legislation
Section 394 of the Act, is in the following terms:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
For an application to be validly made under s. 394, it must be made within 21 days after the dismissal took effect, or alternatively, within a further period allowed by the Commission. The decision to grant a further period for an application to be made is discretionary, and a further period can only be granted if the Commission is satisfied that there are “exceptional circumstances”, taking into account the matters set out in s. 394(3). Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves need not be unique or unprecedented, or even very rare.[6] Exceptional circumstances may include a single exceptional factor, 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.[7]
The requirement that there be exceptional circumstances before a further period can be granted under s. 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 – day period within which an application for approval of an enterprise agreement must be made, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. The requirement that the matters in subsections (a) – (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Circumstances in which time can be extended and scope of the referral
It is necessary to consider the decision of the Full Bench in Herc in some detail. At first instance, the Respondent in Herc asserted that the application was made outside the time required in s. 394(2) of the Act and had also advanced jurisdictional objections in relation to:
whether the Applicant was an employee;
whether the Applicant was dismissed; and
whether the sum of the Applicant’s annual rate of earnings exceeded the high income threshold.
The Respondent in Herc also asserted that if the Applicant was an employee, it was not the employer of the Applicant. The Deputy President at first instance, dealt with the high income threshold objection before determining any of the other matters, including whether the application was made within the required time. The Full Bench in Herc said:
“[10] For the reasons that follow, we have decided that in determining the jurisdictional objection relating to whether the Appellant’s earnings exceeded the high income threshold, in advance of other objections, the Deputy President erred by acting on a wrong principle and failing to take other material considerations into account. The material considerations the Deputy President failed to take into account before determining whether the Appellant’s earnings exceeded the high income threshold were: whether the application was made within the time required in s.394(2); whether the Appellant was an employee; if the Appellant was an employee, the entity that employed her; and whether the Appellant was dismissed. While the Commission has broad discretion to decide how a matter will be dealt with, by not determining, in the proper order, other objections upon which the validity an application depends, will result in an error of the kind identified in House v The King.
[11] Absent those findings, the Deputy President could not have determined the high income threshold objection. In reaching this conclusion, we note that the Appellant was represented by the same firm of solicitors, both in the appeal and in the first instance proceedings. We further note that the Appellant’s legal representative acquiesced in the process adopted by the Deputy President for determining the matter, and now complains about the outcome of that process. We also note that the Respondent’s contention in the appeal is that the Full Bench should uphold a decision, that is premised on a hypothesis that it employed the Appellant, which the Respondent does not accept and upon which it reserves its position.” (my emphasis)
In relation to the out of time issue, the Full Bench said:
“[14] Part 2 of the Form F3 Employer response to an unfair dismissal application, provides for the employer to make jurisdictional or other objections to an application for an unfair dismissal remedy. The Form F3 explains that jurisdictional objections relate to why an applicant is not eligible to make an application to the Commission. The first objection in the list in item 2.2 of the Form F3 is that the application is out of time, that is that the application was lodged more than 21 days after the dismissal took effect.
[15] The question of whether an application for an unfair dismissal remedy is made outside the required time, is not strictly a jurisdictional objection. Quite simply, an unfair dismissal application made outside the time required in s.394(2) is not validly made, unless and until, a further period has been granted. In the present case, the Appellant stated in her Form F2 application that she was notified of her dismissal on 5 December 2021 and that it took effect on 5 January 2022. The Respondent stated in its Form F3 response to the application that if the Appellant was dismissed, the dismissal took effect on 24 December 2021. The Appellant’s unfair dismissal application was made on 26 January 2022. If the Respondent’s contention is correct, then the application was made 12 days outside the time required in s.394(2). Before any of the other jurisdictional objections can be considered, it is necessary that the question of the date the Appellant’s dismissal took effect (if the Appellant was dismissed).
[16] The Respondent also asserted in the Form F3 that the Appellant was not an employee of the Respondent. The Respondent contended that it entered into a contract with PayMe Australia Pty Ltd for the services of the Appellant and that under the terms of that contract, the Appellant was either an employee or contractor of PayMe Australia Pty Ltd and not the Appellant or its clients. Before the Appellant can make an unfair dismissal application, she must be found to be an employee. This is a jurisdictional objection. It is axiomatic that to make this finding, it is necessary to identify the entity that is the employer. Only when these findings are made, can the issue of whether the Appellant’s annual rate of earnings exceeded the high income threshold, be determined (also a jurisdictional objection).
[17] While it may be necessary to assume that an applicant is an employee for the purposes of determining whether an application for an unfair dismissal remedy is made outside the required time, and if necessary, whether a further period should be granted for the application to be made, such assumptions cannot be made with respect to other jurisdictional objections. Where time is extended or an application is made within time, and an objection as to whether the applicant is an employee is raised, that objection must be dealt with before consideration can be given to other objections such as whether the person was dismissed, high income threshold or genuine redundancy. We observe, without deciding, that there may be single cases where objections on the grounds of no dismissal, high income threshold, minimum employment period or genuine redundancy are made and it is convenient to decide one of these issues without deciding the others. However, it is not a proper approach to deal with any of these objections before finding that an application is made within the required period or granting a further period and then determining whether an applicant is an employee and if necessary, the identity of the employer. (My emphasis)”
The Full Bench in Herc went on to quash the first instance decision in its entirety and to refer the matter to the Deputy President to determine:
a.whether the Appellant’s unfair dismissal application was filed within the time required in s.394(2) of the Act;
b.whether the Appellant was an employee;
c.if the Appellant was an employee, the entity that employed her;
d.whether the Appellant was dismissed; and
e.whether the sum of the Appellant’s annual rate of earnings exceeded the high income threshold.[8]
In short, the substantive issue in Herc was the requirement that the jurisdictional objections be dealt with in the proper order, and it was the failure to do so that led to jurisdictional error in that case. While the failure to deal first with the out of time issue was also erroneous, the Full Bench did not find that this was a jurisdictional error.
The following propositions can be distilled from the Full Bench decision in Herc. Firstly, an objection to an application on the basis that it is made outside the time required, is not strictly speaking a jurisdictional objection. Secondly, an application made outside the required time is not validly made unless and until a further period is granted. Thirdly, the grant of a further period under s. 394(b) retrospectively validates an application made outside the time in s. 394(2)(a), because the effect of a further period being granted is to extend the time for making the application, from a date 21 days after the relevant dismissal took effect, to the date on which the application was made. Fourthly, while it is not a proper approach to determine a jurisdictional objection before determining that an application was made within time, or if not, whether a further period should be granted, there is no jurisdictional impediment to a further period being granted, after a decision determining a jurisdictional objection in relation to that application has been made. Fifthly, the grant of a further period in such circumstances will regularise a decision and proceedings in relation to a jurisdictional objection, notwithstanding that it is made before the further period is granted, subject to the jurisdictional decision not being erroneous.
Contrary to the Respondent’s submissions in the present case, Herc is not authority for the proposition that an application made outside the time required in s. 394(2)(a), can never be validly made. Neither does Herc establish that a hearing and a decision in relation to a jurisdictional objection, prior to a further period being granted, are null and void. If the Respondent’s proposition to the contrary was correct, the Full Bench in the present case would have quashed the entire Jurisdictional Decision and referred all matters to me to determine rather than simply the question of whether the application was made within the time required in s. 394(2).
As I have noted, the Full Bench did not quash or set aside my finding that the Applicant was employed by the Church of Ubuntu, and that the Applicant was dismissed by that entity, and instead, confirmed the correctness of the Jurisdictional Decision. The Full Bench referred the matter to me to consider whether the application was made “within the time required in s. 394(2)” (my emphasis), which includes s. 394(2)(b). In short, the terms of the referral of the matter by the Full Bench are that I am required to make a finding as to whether the application was made within the time required in s. 394(2)(a) and if I find that the application was not made within that time, to decide whether to allow a further period under s. 394(2)(b), having regard to the matters in s. 394(3).
To avoid further delay and uncertainty, and considering the Respondent’s communication via its submissions, that it will appeal any decision I make which results in the application being found to have been made within time, or to extend time, I have considered ss. 394(2)(a) and (b) in the alternative.
For reasons that follow, I find that the application was made within the time required in s. 394(2)(a). In the alternative, if that conclusion is incorrect, I exercise the discretion in s. 394(2) (b) to extend the time for making the application, on the basis that I am satisfied that there are exceptional circumstances justifying a grant of a further period, taking into account the matters s. 394(3).
Procedural History
Lodgement of Form F2 application
Before turning to the question of whether the application was made within the time required by s. 394(2) of the Act, it is necessary to recount the procedural history related to its lodgement. On 29 October 2021, two versions of a Form F2 application dated 28 October 2021, were filed in the Commission on behalf of the Applicant by her legal representative, Mr Mark Swivel of Barefoot Law. The first version was filed at 9:35am and the second version was filed at 1:34pm. Both versions nominated the employer of the Applicant and the Respondent to the application, as “Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle ABN 61 649 115 200” (Clinic). The difference between the two versions of the Form F2 was the addition of a letter advising the Applicant that her contract had been terminated. The letter, issued under the letterhead of the Church of Ubuntu and signed by Ms Burge as the Vice President of the Church and Owner, Operator/Manager of the Clinic, was referred to in the first version of the Form F2 but not attached.
On 2 November 2021, the Commission’s Client Services Team sent a letter informing the Applicant that the unfair dismissal application had been received by the Commission but there was missing or incorrect information in her application. The letter further stated that the Applicant was required to fix her application by 16 November 2021 and if the missing or incorrect information was not fixed by that date, her application would likely be dismissed. The relevant aspects of the 2 November letter are reproduced below:
“2 November 2021
…
Dear Ms Lainie ChaitWe received your unfair dismissal application
Your application has missing or incorrect information
Case nameMs Lainie Chait v Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle
Case number U2021/9704
We have received your application saying you were unfairly dismissed.
There is missing or incorrect information in your application.
We need you to fix your application before we can go ahead with your case. You must do this by 16 November 2021. If you don’t, your application may be dismissed.
…You have listed more than one employer in your application form
Each unfair dismissal application can only relate to a single dismissal by a single employer. Before your case can go any further, you need to update your application form to identify who your employer was.
…If we don’t receive your completed application by 16 November 2021, your case is very likely to be dismissed.
…”
Also on 2 November 2021, the Client Services Team sent a separate letter to Ms Karen Burge. By this letter, Ms Burge was informed that the Applicant had made an unfair dismissal application to the Commission, claiming that she had been unfairly dismissed by Ms Burge and/or the Clinic. The letter further stated that additional information had been sought from the Applicant and until the information was received, no action would be taken by the Commission and no action was required of Ms Burge. The relevant aspects of the correspondence are reproduced below:
“2 November 2021
…
Dear Karen Margaret Burge
Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle
We have received an unfair dismissal application
Case nameMs Lainie Chait v Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle
Case number U2021/9704
On 29 October 2021, we received an application from Lainie Chait saying they were unfairly dismissed by Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle.
We need more information from Lainie Chait and we have asked them to send it to us. We won’t take any further action until then.
What happens next?
You don’t need to do anything yet.
When Lainie Chait gives us the information we asked for, we will send you another letter explaining what to do.
At that time, we will also:
•send you their completed application
•ask you to tell us your side of the case and give you the form to do this.
If Lainie Chait does not give us the information we asked for, then we might dismiss their application. If we dismiss their application, we will send you a copy of the decision dismissing it.
…”
At 7:40am on 9 November 2021, before the date by which the correspondence from the Commission’s client service team required action to be taken, Mr Swivel filed in the Commission a third version of the Form F2 application which nominated the employer of the Applicant as “Church of Ubuntu ABN 66 886 378 677” (Church) and Mr Barry Futter (President of the Church) as the contact person for the application. The third version of the Form F2 was also dated 28 October 2021, being the date of the first and second versions of the Form F2. In the lodgement email of 9 November, Mr Swivel stated the following:
“Dear Registrar,
We enclose an updated application in this matter.
The respondent has now been clarified as the Church of Ubuntu, ABN 66 886 378 677.
The application has been updated to reflect this but is substantially the same.
The informality of the employer has produced the confusion on this issue.
Please contact me directly should you have further queries.”
Following receipt of the third version of the Form F2, the Commission’s Registry took a number of steps to process the application administratively, and unfortunately, because there were 3 versions of the Form F2 filed on behalf of the Applicant, several errors were made in that process. Firstly, on 9 November 2021, after the third version of the Form F2 had been filed, a Notice of Listing was issued by the Commission’s unfair dismissal team, requesting that the Applicant and Ms Burge (who was named as the employer in the first and second versions of the Form F2) participate in a staff conciliation on 2 December 2021, notwithstanding that the third version of the Form F2 nominated the Church rather than Ms Burge as the Employer and Respondent to the application. Secondly, service of the application was effected by the Registry on Ms Burge rather than Mr Futter and it was the second version of the Form F2, rather than the third version, that was served. Thirdly, letters were again issued by the Client Services Team on 9 November 2021 to the Applicant and Ms Burge repeating that the Applicant made an application on 29 October 2021 alleging that she had been unfairly dismissed by “Karen Margaret Burge and/or Ubuntu Wellness Clinic Newcastle”. The letter of 9 November to Ms Burge and/or the Clinic further required a Form F3 Employer Response to be lodged in the Commission within 7 days.
A file note on the Commission records indicates that on 10 November 2021, the Applicant advised the Registry by telephone that the Registry had served an incorrect version of the Form F2, and that service was not effected on the correct Respondent. The Applicant reiterated the fact that she had amended the identity of the Respondent in her most recent version of the Form F2 as requested by the Commission, and that service of the Form F2 ought to have been effected on the Church as opposed to Ms Burge. The errors were acknowledged and rectified by the Registry on 10 November 2021.
At 4.43pm on 10 November 2021, the Commission’s Client Services Team sent an email to Ms Burge advising that an email to which the letter of 9 November was attached, was sent to her inadvertently. Ms Burge was asked to delete that email, its attachments and any copies she may have made. Confirmation of the deletion was also requested from Ms Burge. No response was provided by Ms Burge.
At 4.36pm on 10 November 2021, the Commission’s Registry served a copy of the third version of the Form F2 on the Church and correspondence was issued by the Client Services Team to Mr Futter, advising that on 29 October 2021, the Applicant lodged an unfair dismissal application in the Commission alleging that she had been unfairly dismissed by the Church. The Church was requested to take part in a staff conciliation before the Commission and file a Form F3 Employer Response by 17 November 2021.
It should be noted that when Mr Swivel filed the third version of the Form F2, the subject line of his lodgement email read: “Re: Fair Work Commission case U2021/9704 Chait v Karen Margaret Burge And / Or Ubuntu Wellness Clinic Newcastle”. This error, together with the failure to identify the proper Respondent, contributed to errors made by the Commission’s Client Services Team. The lodgement email was attached to an email sent by the Registry to the Church for the purpose of effecting service. Because of the reference to Ms Burge and the Clinic in the subject line, there was a misunderstanding on the Applicant’s part that the Registry had again served the wrong version of the Form F2. On 11 November 2011, the Applicant emailed the Registry stating:
“My issue is that the claim isn’t against Karen Burge as stated, I rang to fix this error yesterday 10th to make it against Barry John Futter the president of the Church of Ubuntu.
Not sure why this is coming back in my inbox again against Karen Burge.
Please fix this it is important.”
A file note on the Commission records indicates that on 11 November 2021, the misunderstanding was clarified by Registry staff in a telephone call with the Applicant. The Registry confirmed that the Commission record had been updated to reflect that the Church is the Respondent in the matter, consistent with the latest version of the Form F2. It was also confirmed by the Registry that service had been properly effected on Mr Futter and that it was third version of the Form F2 that had been served.
Directions were issued for the hearing of the application, on the basis that it was made against the Church rather than Ms Burge. At all times, the Church was advised of the Applicant’s case, provided with an opportunity to respond and was heard in relation to its opposition to the application. When the Church did not comply with Directions it was given opportunity to provide further material, as was the Applicant. Ms Burge also participated in the hearing relating to the Respondent’s jurisdictional objections and gave evidence in support of those objections, and Pastor Burton who represented the Church, and Mr Futter who gave evidence on its behalf, gave no indication that they did not understand the Applicant’s case as it related to the Church.
Directions for the hearing of the matter referred by the Full Bench
Directions were issued on 1 February 2023 for a hearing in relation to the matter referred to me by the Full Bench. The Directions indicated to the parties that the hearing would determine two matters: whether the application was lodged within the 21-day period as required by s. 394(2)(a) of the Act and, if the application was made outside the 21-day period, whether the Applicant should be granted a further period to make the application pursuant to s. 394(2)(b), having regard to the matters in s. 394(3) (time issues).
The Applicant was directed to file an outline of submissions and a statement of evidence that she intended to rely on in relation to the time issues, including material in support of a further period being granted should this be required. The Respondent was directed to file and serve an outline of submissions and any statement of evidence in response to the material filed by the Applicant and in relation to the time issues. A hearing was listed for 24 February 2023.
On 7 February 2023, the Applicant filed an outline of submissions and an affidavit sworn on 7 February 2023. On 21 February 2023, Pastor Paul Burton filed an outline of submissions on behalf of the Respondent and requested that the time issues be determined based on the written material filed without an oral hearing. I responded to that submission by email, explaining the implications of dealing with the matter on the papers, based on my view that the Respondent’s submissions took issue with facts set out in the Applicants’ material. The Respondent withdrew the request on the basis that it did intend to dispute the factual matters set out in the Applicant’s affidavit and to cross-examine the Applicant in an oral hearing. The hearing remained listed for 24 February 2023.
In her affidavit, the Applicant outlined the filing of the various versions of the Form F2 in the Commission and referred to the 2 November letter from the Commission’s Client Service Team, that required her to revise the application by 16 November 2021 (as set out above). A copy of that letter was not appended to her affidavit. On 23 February 2023, Pastor Burton corresponded with the Commission seeking an adjournment of the hearing on the following grounds:
“In the interests of the most efficient use of The Fair Work Commissions time and resources and the parties involved I do not see how these proceedings can be heard tomorrow.
To do so would be procedurally unfair for a number of important reasons.
Ms Chat (sic) and Mr Swivel have both claimed in their affidavits and submissions that they have already been given an extension of time by The Fair Work Commission (FWC) and in that respect refer to an email from the FWC stating that they had named two respondents on the application and they had until the 16th of November to amend.
To date neither Karen Burge nor The Wellness Clinic nor The Church Of Ubuntu have been given a copy of this correspondence from Fair Work.
Tomorrows (sic) matter was set down to hear in regards to whether the application was out of date and then whether or not to grant an extension in retrospect. Yet Ms Chait and Mr Swivel claim they were already given an extension of time.
Both Mr Swivel and Ms Chait could have attached a copy to the affidavit and submissions but have not done so.
It would be procedurally unfair to allow them to rely upon documents and communication that have never been made available to the respondent, when it is claimed that document supports their case.
There are also anomalies in that not only did Ms Chait appear to amend the document twice, but then further issued a new application out of time, but she has also constructed that out of time document using parts of the previously incorrect irregular document that was apparently ordered to be amended by the FWC.
This is particularly difficult when the same file number was used on all three documents claiming three different respondents and she claims in her affidavit that the original one baring that file number was dismissed.
And then goes on further in her affidavit to say in her understanding this matter is still against Karen Burge and/or The Ubuntu Wellness Clinic.
This hearing simply cannot proceed until the correspondence granting that extension is provided to the current respondent so we can see exactly what transpired and what if any extension was given and what it was given for.
The respondent therefore in the interest of justice and procedural fairness request that the matter be adjourned for mention and a new hearing date be set and orders made that the communication referred to in Ms Chait’s affidavit is produced to the current respondent.”
Having considered the request by the Respondent, I decided to grant an adjournment on the basis that I agreed with the submissions insofar as they relate to the concern at the failure of the Applicant to provide an important document referred to in her affidavit – the letter of 2 November 2021 issued by the Commission’s Client Services Team.
To expedite the matter, I conducted an examination of the Commission’s file and identified a series of emails and documents evidencing communication between the parties and the Commission staff, as being relevant to whether the application was made within the time required in s. 394(2) and if not, whether further period should be granted. On 11 April 2023, I issued a Statement and Further Directions, setting out a summary of the procedural timeline based on my perusal of the file, and appending copies of emails, letters and notes made by Commission staff. I also noted in the Statement that all three versions of the Form F2 were given the same matter number and the second and third versions appear to have been treated by the Commission’s Client Services Team as amendments to the initial application.
The parties were directed to file any further submissions or statements of evidence in relation to the correspondence appended to the Statement and Further Directions and advise by 24 May 2023 whether an oral hearing would still be required by the parties considering the appended correspondence. On 24 April 2023, Pastor Burton on behalf of the Respondent corresponded with my Associate asserting that I had already decided to grant an extension of time, despite (in his view) this not being possible, and requesting that I make my decision on the papers and send a copy so the Respondent could appeal.
My Associate corresponded with the Respondent on 24 April 2023, advising as follows:
“The contents of your email are noted. Vice President Asbury has instructed me to advise that your assumption that a decision has already been made to extend time is incorrect.
Paragraphs (3) and (4) of the Further Directions issued on 11 April 2023 requires the parties to advise whether the parties wish to be heard at an oral hearing or to cross-examine any witness called by the other party, and absent that advice, the matter will be determined based on the written material filed by the parties. Noting that the parties have until 18 May 2023 to file any additional material in relation to whether a further period should be granted, you may wish to reserve the Respondent’s position about cross examining the Applicant in the event that any further material is filed by the Applicant.
The Vice President will await any further material which may be filed by either party before deciding whether to determine the matter on the basis of the material filed or to hold a hearing. The matter will be determined on the basis of evidence and submissions and in accordance with the provisions of the Fair Work Act 2009.
In due course, the Vice President will issue her Decision and the Respondent is free to appeal the Decision if it is aggrieved, by lodging an appeal in accordance with the provisions of the Fair Work Act 2009.”
On 4 May 2023, Pastor Burton sent an email (salutations omitted) in the following terms:
“The Respondent relies on their submissions in particular the submission of 21/2/2023.
In our understanding Deputy President Asbury can only decide as to whether in her view, the application is in time, and if it is not in time if she will (or from our position, can) grant a time extension.
If the Respondent is unsuccessful in regards to Deputy President Asbury finding either the application was filed in time, or if it was not, to grant an extension of time in retrospect, they respectfully intend to Appeal Deputy President Asbury’s decision.
Notwithstanding the appearance of any new information the Respondent is happy for Deputy President Asbury to hear the matter on the papers with what has already been provided to her and The Fair Work Commission.”
On 17 May 2023, Mr Swivel filed additional written submissions on behalf of the Applicant and advised that an oral hearing would not be necessary. Also on 17 May 2023, the Respondent indicated that it continued to rely on its written submissions filed on 21 February 2023 and did not require an oral hearing. Accordingly, I have determined this matter on that basis.
Submissions and evidence
The Applicant
The Applicant’s evidence can be summarised as follows. Her original Form F2 application was made on 28 October 2021 after her dismissal which took effect on 11 October 2021. It was made within the 21 days as required by s. 394(2) of the Act. The Applicant stated that she identified the Respondent as “Karen Margaret Burge and / or Ubuntu Wellness Clinic” in her original Form F2 as she was never clear as to exactly who her employer was, and that her confusion was caused by ambiguity created by the Respondent. In this regard, the Applicant pointed to the fact that the letter dated 11 October 2021 that terminated her contract was signed by Ms Karen Burge, Vice President of Church of Ubuntu and Owner Operator/Manager of The Ubuntu Wellness Clinic, using the letterhead of the Church of Ubuntu. Ms Burge’s email address to which her original application was sent, also contained the domain name “@churchofubuntu.org”.
On 2 November 2021, the Applicant stated that she was notified by the Commission that she had identified two Respondents in her application and yet, the matter was listed for conciliation on 2 December 2021 with both Ms Burge and the Clinic named in the Notice of Listing issued on 9 November 2021. The correspondence of 2 November 2021 required her to revise the application and she was given until 16 November 2021 to do so. In accordance with that correspondence, the Applicant said she revised the application and identified the Respondent as “the Church of Ubuntu”. The revised application was filed on 9 November 2021, some 11 days after the original application was lodged.
The Applicant expressed the view that she did not do anything to delay the filing or revising of her application and that the Church and Mr Futter knew of her application from the outset. Further, the Church did not raise the objection that her application was not lodged within the time required by s. 394(2) of the Act, until some time after the conclusion of the hearing at first instance on 30 May 2022.
In submissions, the Applicant reiterated that her original application was filed within the 21 days in accordance with s. 394(2) of the Act. In this regard, the Applicant submitted that she was under the impression that she made the one application which was then amended at the prompting or request of the Commission. This was said to be consistent with the way the application was handled by the Commission Registry.[9]
However, the Applicant submitted that should the Commission be of the view that the application was made outside the required 21 days, a further period should nevertheless be granted on the basis that there were exceptional circumstances in play. Those exceptional circumstances were as follows:
The reason for the delay stemmed from the confusion as to the identity of the employer which was created by the Respondent which did not enter into a formal contract with the Applicant or other employees. Such written contracts would have clarified the proper employer or contracting party. Further, it was said that in correspondence with the Applicant, the Respondent referred to itself in various ways which resulted in a genuine and reasonable confusion in the mind of the Applicant.
As to the prejudice to the employer (including prejudice caused by the delay), the Applicant submitted that there is and was not such prejudice because the original application was sent to the Church of Ubuntu via Ms Burge’s email address (@churchofubuntu.org) and there was no material delay in filing material because the amended application was filed and served only 11 days later on 9 November 2021 and within the period allowed by the Commission for revising the application, that is, by 16 November 2021.
As to the merits of the application, the evidence before the Commission was said to indicate that the Applicant has a strong case, for example, oral evidence uncontradicted by the Respondent indicates that the Applicant was “summarily dismissed” by the Respondent because she decided to become vaccinated against COVID-19.
The Respondent
The Respondent noted the reference by the Full Bench to the decision in Herc[10] and noted that I “sat on the board that made that ruling”. The Respondent submitted that “it shows clearly the necessity to follow the rulings as determined in the Herc case” in deciding the present matter and that the matter, subject of the referral, was framed by the Full Bench in its Decision[11] in the following terms:
“The matter is referred to Deputy President Asbury to determine whether the Appellant’s unfair dismissal application was filed within the time required in s.394(2) of the Act.”
The Respondent went on to contend that the Full Bench has referred only one question for determination, and that I have misconstrued its orders in this regard in deciding to determine whether the application was filed outside the time required by s. 394(2)(a) of the Act and if so, whether a further period should be granted in accordance with s. 394(2)(b) having regard for the matters in s. 293(3).
In addition, the Respondent noted that the first application was filed on 29 October 2021 and the amended application was later filed on the same date. Both the original and amended applications identified Ms Karen Burge and/or the Clinic as the Respondent. The Church contends that, while the first and the amended application were filed within time, the “new application” which named a new Respondent was filed out of time on 9 November 2021. In this regard, the Church asserts that the correspondence from the Commission dated 2 November 2021 indicated that the Commission may “have granted Ms Chait the time to amend her application until the 16th of November to identify one respondent, either Karen Burge or The Ubuntu Wellness Clinic”. The Respondent argues that it was prejudicial not only to Ms Burge and/or the Clinic that they were not notified of such extension, but also to the Church who at that time had not even been notified of the application.
The Respondent further submitted that the Applicant then chose to file an entirely new application out of time against the Church – a different Respondent with a different ABN. This was said not to be a further amended application, as the Applicant could not amend an application by naming a new Respondent. The Church argues that the first application and the amended application were clearly withdrawn and the second application against the Church was then made out of time. By hearing an application out of time in circumstances where no application had been made to extend time and a further period in which to make the application, had not been granted, it was contended that the Commission as presently constituted had exceeded jurisdiction in determining the other jurisdictional objection at first instance.
The Respondent then went on to make submissions to reagitate issues that had been determined at first instance and were not disturbed or quashed by the Full Bench on appeal. In relation to the issue of whether there were exceptional circumstances to warrant a further period to be granted, the Respondent stated that:
“There is no reason to argue whether the circumstances for the application being out of time are exceptional or not, because this is an argument that should have been made on an application to extend time before the substantive jurisdictional matter was heard, not after it has been heard and appealed and returned.
One cannot now decide whether or not to grant an extension of time in retrospect after a matter has already been heard and appealed without that extension being granted.
You cannot now grant leave to hear an application that has already been heard without jurisdiction and without leave being granted, that is clearly in error and also contrary to the rulings in the ‘Herc’ case.”
Lastly, the Respondent submitted that “the hearing of the original application is null and void” because it was heard in circumstances where the Commission had no jurisdiction to hear the application, because it was made out of time and the Commission cannot decide “whether or not there are grounds to grant an extension, in retrospect, after hearing a matter without jurisdiction”.
Consideration
Matters for determination
As I have previously noted, the Full Bench referred the matter to me to determine:
Whether the application was made within the time required in s. 394(2)(a); and
If the application was not made within that time, whether a further period should be granted pursuant to s. 394(2)(b), having regard to the matters in s. 394(3).
If the application was made within time, it was validly made, regardless of whether I made a finding on this question before making the Jurisdictional Decision. If the application was not made within time, the time for making it can be extended to validate the application, after the jurisdictional issues raised by the Respondent have been determined.
I doubt that the Respondent will accept my views on these matters. However, I am of the view that if I followed the course proposed by the Respondent and simply decided whether the application was made within the required time, even if the Respondent succeeded with an appeal against that finding, the matter would again be referred to me to decide whether a further period should be granted under s. 394(2((b) having regard for the matters in s. 394(3). Accordingly, as I previously stated, I have considered these matters in the alternative, to save the parties further time, cost and effort associated with two potential appeals.
Whether the application was filed within 21 days of the dismissal taking effect
Fair Work Commission Client Services or Registry staff are not empowered to grant a further period for an application to be made, where the application is filed outside the time required in the FW Act. Any issue related to the grant of a further period can only be determined by a Member of the Commission. However, confusion about communications from Commission staff may be relevant to explaining a delay in making an application and to whether a further period should be granted, on the basis that it is reasonable for applicants to rely on information provided by Commission staff.
Contrary to the Respondent’s submissions, in the present case, Commission staff did not grant the Applicant a further period in which to file her application. Instead, Commission staff treated the second and third versions of the application as amendments to the first version. In my view, they were correct to do so. I took the same course. If I erred in doing so, it was by failing to make this clear during the proceedings or in the Jurisdictional Decision.
There is nothing unusual or inappropriate about applications to the Commission being amended to reflect the correct identity of a putative employer. Such amendments are commonly sought by both applicants and respondents to proceedings in the Commission for a variety of reasons involving error or misunderstanding about the proper name of the alleged employing entity or which entity in a group of related entities is the employer. The considerations relevant to whether permission to amend the name of a respondent to an application, are that the named respondent is given an opportunity to respond to the application to amend and be heard in relation to it.
In my view, the third version of the application was an amendment to the second and first versions of the application filed on 29 October 2022, within the required time. There is nothing irregular about an application to the Fair Work Commission being amended to clarify the identity of an applicant or respondent. The mere fact that a putative Respondent disputes that it should be named in an application, is not determinative of whether the application can be amended. If an entity or person disputes being named as a Respondent to an application, the person or entity can object and the matter of the identity of the proper Respondent determined.
In the present case, had the third version of the application been filed within 21 days of the date the Applicant’s dismissal was alleged to have taken effect, no complaint could have been made by the Church of Ubuntu about the amendment to the original application, notwithstanding that the Church disputed that it employed the Applicant.
I am satisfied that the Church was afforded procedural fairness by being given an opportunity to dispute the Applicant’s assertion that it was the proper Respondent to the application, for the following reasons. Firstly, Ms Burge, who was named in the first and second application, is a Vice President of the Church. Secondly, the Clinic effectively operates under the auspices of the Church, as the evidence I considered in the Jurisdictional Decision indicates. Thirdly, the President of the Church Mr Barry Futter, and Pastor Burton, were involved in all aspects of the hearing I conducted, and the Church was given a number of opportunities to rectify inadequacies in its material, as was the Applicant. Fourthly, the Church put forward a full argument as to why it did not employ the Applicant and Ms Burge gave evidence to the effect that she engaged the Applicant as an independent contractor. The Church does not point to any further argument it would have put in relation to this question, and its complaint is simply that I rejected its contentions in this regard. As previously noted, my Decision finding that the Church employed the Applicant, and that it dismissed her, was found by the Full Bench in the appeal, to be correct and was not quashed.
If my conclusion that the application was filed within the time required in s. 394(2)(a) is incorrect, I turn now to decide whether to exercise the discretion in s. 394(3) of the FW Act to grant a further period for the application to be made, as provided in s. 394(2)(b).
Whether a further period for the application to be made should be granted
Reason for the delay
When the correspondence from the Commission to the Applicant and her representative is considered, the Applicant has provided a reasonable explanation for the delay in filing her application. The Applicant asserts that she was dismissed on 11 October 2021. The application was therefore required to be filed by 1 November 2021 – 21 days from the date the dismissal took effect. The first and second applications were filed on 29 October 2021, within the time required. As I noted in the Jurisdictional Decision, the second version of the application differed from the first only insofar as a letter referred to in both versions was appended to the second version and had been omitted from the first version. The third version of the application was filed on 9 November 2021, 29 days from the date the dismissal took effect and nine days outside the time required. The period of the delay is therefore eight days between 2 and 9 November.
In my view, the entire delay is explained by the correspondence sent to the Applicant from the Client Services Team and the Registry. In short, the third application was treated by Client Services and Registry staff, as an amendment to the second application. The Applicant was informed that she had named two employers in her first and second applications and that she should update her application to identify who her employer was, before the application could proceed. The Applicant was also informed that she had until 16 November 2021 to take this step.
In those circumstances, it was reasonable for the Applicant to rely on what she was told by Commission staff, and to consider that she had been granted permission to amend her application and allowed a further period in which to do so. Moreover, when the Applicant filed the third version of the application, within the time frame she had been apparently allowed, the Client Services Team did not question the amendment to the identity of the Respondent. Other reasons for the delay advanced by the Applicant also have merit. In particular, the confusion generated by the fact that the letter advising the Applicant that her status as a “subcontractor” with the Clinic had been terminated, was on the letterhead of the Church of Ubuntu. In this regard, the letter was signed by Ms Burge in the dual capacities of Vice President of the Church and Owner, Operator/Manager of the Ubuntu Wellness Clinic. The interdependent relationship between the Church and the Clinic was also emphasised by the fact that the Church used the bank account held by the clinic to transact its business, in periods when the Church’s bank accounts were suspended. Further, the guiding hand in all the events leading to the Applicant’s termination was that of Mr Futter, the President of the Church, as evidenced by the audio recording tendered by the Applicant in the jurisdictional hearing, where Mr Futter stated that “nobody can work for us if he’s vaccinated”.[12]
That there is a satisfactory explanation for the full extent of the delay weighs in favour of a further period to make the application being granted.
Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant contended that she was dismissed with effect from 11 October. There is no question that the Applicant was aware of her dismissal at the time it took effect. The Applicant had a full 21 days to make the application and this weighs against a further period being granted.
Any action taken by the Applicant to dispute the dismissal
The Applicant took action to dispute her dismissal within the 21-day period after her dismissal took effect, by filing the first and second unfair dismissal applications. Both applications were served on Ms Burge and the second application contained the dismissal letter, which was on the letterhead of the Church of Ubuntu. A reasonable person would have understood that the Applicant believed she had been unfairly dismissed – albeit by the Clinic – and was taking action to dispute her dismissal. Ms Burge is also the Vice President of the Church and given the relationship between the Church and the Clinic as set out in my reasons for dismissing the Respondent’s jurisdictional objections, it is reasonable to assume that Ms Burge informed Mr Futter or Pastor Burton of the application.
This assumption is made more probable by the fact in addition to being a Minister of Religion, Pastor Burton is a Bard, Paralegal and Human Rights Advocate and doubtless would have been a source of advice for Ms Burge.
This matter weighs in favour of the grant of a further period for the application to be made.
Prejudice to the employer (including prejudice caused by the delay)
Other than the fact that it will be required to defend the application, the Church has not pointed to any prejudice it will suffer caused by the delay. The same prejudice would have been suffered if the application was made within the required time, and this is a neutral consideration.
Merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[13] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth) and said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[14]
After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. Accordingly, I am of the view that the merits of the application are a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
I am satisfied and find that the application in U2021/9704 was made within the time required in s. 394(2)(a). In the alternative, having regard to the matters I am required to take into account under s 394(3), I am satisfied that there are exceptional circumstances that trigger the discretion in s. 394(2)(b) to extend time, and that it is appropriate that the discretion be exercised and a further period granted. An Order[15] extending the time to make the application in U2022/9704 to 9 November 2021, will issue with this Decision. Directions will also issue for the hearing and determination of the remaining issues: whether the Applicant’s dismissal was unfair, and if so, the remedy that should be granted.
VICE PRESIDENT
Final written submissions:
The Applicant, 17 May 2023.
The Respondent, 17 May 2023.
[1] PR745276; Chait v Church of Ubuntu[2022] FWC 2947.
[2] Chait v Church of Ubuntu[2022] FWC 2947.
[3] Church of Ubuntu v Chait [2023] FWCFB 20.
[4] [2022] FWCFB 234.
[5] [2023] FWCFB 20 at [4] – [5].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Op. cit. at [19].
[9] Applicant’s Additional Submissions filed 17 May 2023 at [3].
[10] [2022] FWCFB 234.
[11] Church of Ubuntu v Chait[2023] FWCFB 20
[12] Jurisdictional Decision op. cit. at [26].
[13] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[14] Ibid.
[15] PR766345.
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