Liz Ge v Click Insure Pty Ltd T/A Click Insure

[2016] FWC 8347

[2016] FWC 8347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Liz Ge
v
Click Insure Pty Ltd T/A Click Insure
(C2016/5876)

COMMISSIONER WILSON MELBOURNE, 23 NOVEMBER 2016

Application to deal with contraventions involving dismissal; whether an extension of time should be granted.

[1] This matter concerns an application made by Ms Liz Ge for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Ge was employed by the Respondent, Click Insure, on 7 June 2016, and her application relates to the termination of her employment on either 6 or 13 September 2016. The application was received by the Commission on 28 September 2016.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. My finding below is that Ms Ge was dismissed on 6 September 2016. Accordingly, her application is out of time by one day.

[3] In this decision, I have considered whether an extension of time should be granted to Ms Ge for the making of her application and, for the reasons set out below, I am satisfied that a further period should be allowed.

[4] In considering an application for an extension of time for the making of a general protections application, the Actrequires I must be satisfied that there are exceptional circumstances taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 In the same legislative context it has been held that a decision as to whether to extend the time period involves the exercise of a discretion.2

[5] Click Insure, has not directly objected to the application continuing for reason that it was commenced after the statutory period for the making of a general protections application, however it seeks that the Commission determine whether it is satisfied there are exceptional circumstances for the making of the application, as required by s.366(2) .

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Ms Ge, the Applicant, and her solicitor, Ms I Brcic of Lennon Mazzeo Lawyers, on her behalf, and, on behalf of the Respondent, the submissions of Mr Brian Jones, an owner of the business and Devang Parikh, the owner of a contractor to Click Insure.

BACKGROUND

[7] Ms Ge was first employed by Click Insure, which operates an insurance broking business, on 7 June 2016. The capacity in which she was employed was as a para-planner, within a business that Ms Ge’s application claims employed 715 people. Ms Ge’s employment lasted until September 2016 with her claiming she was subjected to bullying, harassment and racial vilification on the part of a particular manager during the period of her employment. Ms Ge puts forward that she cannot recall the specific number of offensive comments made to her but says they were ongoing and clearly contained racist overtones with the appearance of them being to discriminate against her on the basis of her Chinese/Malay heritage. She also puts forward that she was paid less than the minimum wage during the period of her employment which was subject to a three-month probation period and due to expire on or around 7 September 2016.

[8] Ms Ge was told by Mr Parikh on 6 September 2016, one day before the end of the probation period that her employment would not be continued. He told her at about 11:00AM that her job was finishing that day, and that she would be paid for the week. Having been told that, she left the premises before noon and did not return. Ms Ge’s initial submission was that she thought the dismissal took effect on 13 September 2016 because she was paid notice until then and that she should have worked this period but her employer told her not to. However, Ms Ge agrees that when she left the premises on 6 September, she knew her job had finished.

[9] Ms Ge submits as the basis of her general protections application to the Commission that the decision to dismiss her “was clearly due to her race and the discrimination in the workplace”.

[10] Ms Ge’s evidence is that she consulted solicitors, Lennon Mazzeo, about her situation on or around 20 September 2016, and that she included within her instructions to the solicitors both dates about the circumstances of termination, namely 6 and 13 September 2016 and that errors on the part of her representatives led to the application being late. In this regard her submissions include the following;

“When I consulted Lennon Mazzeo Lawyers I told them both dates, the 6 September and 13 September 2016. To my understanding, 6 September 2016 was put into the Application form by my lawyers however, 13 September 2016 was used to calculate the 21 day period. The Application was lodged online on 28 September 2016, being 1 day late. I do not know why this happened and I can only put it down to a miscommunication between me and my lawyers (given the haste in which we prepared the application) and my representative’s failure to appropriately determine which day was the actual date the dismissal took effect. I do not have legal knowledge and I was entirely dependent on my representatives for advice, guidance and the lodgment of the Application form in time.”

[11] Click Insure, rejects the factual basis put forward by Ms Ge, submitting that instead of being dismissed for reasons of bullying or racial discrimination, her employment was terminated because of changes within its business, including the lack of business caused by the departure of other key staff.

[12] The Respondent also denies that it had 715 employees working for the business and submits that instead it employed only three, one of whom was Ms Ge. However, it concedes that Mr Parikh’s business may employ about forty in a call centre operated on the same floor as the premises in which Ms Ge worked.

[13] It is submitted that Click Insure’s other employees were two insurance advisors and that the only other person employed in the business was Ms Ge who was the support staff for the insurance advisors. Click Insure submits that the two insurance advisors resigned from their roles because they found another job. Mr Jones, who is the owner of the business and is the subject of the complaints by Ms Ge, and a business colleague of his, Devang Parikh endeavoured to look for new advisers but it was difficult at that time to hire new staff.

[14] Click Insure then submit that as a result it decided to end Ms Ge’s employment which occurred a day before the conclusion of her three-month probation period. Click Insure deny having underpaid Ms Ge, noting that the relevant termination payments have been made and payslips emailed to her as well.

LEGISLATION

[15] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

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.

CONSIDERATION

Date of termination

[16] Ms Ge makes an initial argument to the effect that notwithstanding that she was given notice of the termination of her employment on 6 September 2016 and then left the workplace never to return that, because she was given payment in lieu of notice that continued until 13 September 2016, the date of effect of the termination of her employment was the latter date, that is 13 September 2016.

[17] The Act provides in s.386(1)(a) that a person has been dismissed if their employment has been terminated on the employer’s initiative. The evidence that Ms Ge’s contract of employment was brought to an end by Click Insure on 6 September 2016 is abundantly clear. Ms Ge was informed by Mr Jones on that date that her employment was to end and she was asked to leave the premises and when she did so, she had no expectation of returning. Mr Parikh said to Ms Ge on that occasion that she would be paid one week’s pay in lieu of notice for the termination of her contract of employment.

[18] The Commission’s approach in relation to the consideration of matters in which there is a question of whether there has been a dismissal is well settled. Termination at the initiative of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. Had the employer not taken the action it did, the employee would have remained in employment. 3 Where a resignation is asserted, determination of whether a termination was at the initiative of the employer requires an objective analysis of the employer’s conduct to determine whether the employee had no effective or real choice to resign.4

[19] The application of these show that Ms Ge’s employment was terminated on 6 September 2016. Click Insure’s actions directly and consequentially resulted in the termination of Ms Ge’s employment; had it not taken that action she would have remained in employment. There are no other circumstances which would lead to a finding that somehow the contract of employment remained extant and operative beyond 6 September 2016 and some other action brought the contract to a conclusion on 13 September 2016.

[20] I find that Ms Ge was dismissed on 6 September 2016, and that her termination of employment took effect on the same day.

Extension of time – the criteria within s.366(2)

[21] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and 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”. 5

[22] In considering whether an extension of time should be granted to Ms Ge, I am required to consider all of the criteria in s.366(2), which I now do.

1. The reason for the delay

[23] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 6 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.7 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.8

[24] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[25] Ms Ge submits that the reason there was a delay by her in making her general protections application is because of representative error, caused by her solicitors, Lennon Mazzeo Lawyers. She gave evidence that she gave instructions to them to commence a general protections application on 20 September 2016.

[26] The approach to be taken by the Commission in considering the question of representational error includes recognition that representative error may be a sufficient reason to extend the time within which an application may be made; a distinction is to be drawn between delay on the part of an Applicant’s representative and the Applicant herself. The conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application; and error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not there are exceptional circumstances for the granting of an extension of time.

[27] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Ge to lodge her application. Having been dismissed on 6 September 2016, the last day for an application to have been made within time would have been Tuesday 27 September 2016, that period was a total of one day. I find that Ms Ge’s explanation about her solicitor’s error as being the explanation for her delay in making an application to the Commission.
[28] In this particular case, the error that is claimed is a mistake on the part of Ms Ge's solicitor about the date upon which Ms Ge was terminated from her employment. Notwithstanding that it should have been readily apparent to Ms Ge’s solicitor on even a fundamental analysis of the circumstances that the date on which Ms Ge’s termination took effect was 6 September 2016 and not 13 September 2016, and that there is no factual basis upon which an alternative argument can be mounted, it is possible for the Commission to accept that the error as claimed was made. As a result, that error in itself may be a sufficient reason to extend the time limit within which the application is made.

[29] There is no evidence before me about any error on the part of the Applicant herself. Ms Ge apparently explained matters appropriately to her solicitor and likely did not mislead them about the factual circumstances. She gave those instructions to her solicitor on 20 September 2016, which was still within the time period allowed for the making of the general protections application to the Commission. There is no evidence that Ms Ge was left by her solicitor with an onus to gather more information before the application could be lodged. Instead the available evidence leads to the view that having given the instructions to her solicitor Ms Ge expected the application to then be promptly made.

[30] As a result of these circumstances, I am satisfied that Ms Ge has provided an acceptable reason for there being a delay in making her application. Accordingly, this criterion resolves in her favour in my consideration of whether an extension of time for filing should be granted.

2. Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 9 The evidence before the Commission is that the only action taken by Ms Ge to dispute her dismissal was to consult her solicitors and to commence the action which is now before the Commission.

[32] In the circumstances I consider this to be a neutral factor in my determination about whether an extension of time should be granted to Ms Ge.

3. Prejudice to the employer (including prejudice caused by the delay)

[33] The delay in the filing of the application is one day. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[34] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 10

[35] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly this matter also is a neutral factor in my consideration.

4. The merits of the application

[36] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.

[37] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.¹¹

[38] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer is to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 12

[39] The merits of the application to which Ms Ge refers are bullying and racial discrimination on the part of Click Insure. The brief evidence which Ms Ge gave in these proceedings indicates that her evidence overall may well be general. For its part Click Insure completely rejects the characterisation put forward by the Ms Ge, instead submitting that she was dismissed for reason of changes in the business’s operating environment.

[40] With respect to both parties, it is not possible on the basis of the material presently before the Commission to draw an assessment of the merits of Ms Ge’s case. As result consideration of this criterion is also a neutral factor in my determination.

5. Fairness as between the person and other persons in a like position

[41] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 13 On balance, I consider this to be a neutral consideration in Ms Ge’s case.

[42] There is no evidence before the Commission about questions of fairness as between Ms Ge and other people in a similar position. Consideration of this criterion also is a neutral factor in my determination.

[43] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Ms Ge. The error made by her solicitor regarding the date of termination of her employment and the subsequent calculation of the conclusion of the time limit for the making of this application is a significant one and entirely the responsibility of her lawyer.

[44] For these reasons, I grant an extension of time pursuant to s.366 of the Fair Work Act and will issue an Order that the time for Ms Ge to file her general protections application made pursuant to s.365 of the Act be extended until 28 September 2016.

COMMISSIONER

Appearances:

Ms I Brcic for the Applicant

Mr D Jones for the Respondent

Hearing details:

2016.

Melbourne (by telephone):

November 16.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

 4 O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528, [23]

 5   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 7   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.[12]

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 10   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

11 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 12   Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445

 13   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587742>