Lucy Parkinson v Latrobe City Council
[2023] FWC 2694
•17 OCTOBER 2023
| [2023] FWC 2694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lucy Parkinson
v
Latrobe City Council
(C2023/4894)
| COMMISSIONER WILSON | MELBOURNE, 17 OCTOBER 2023 |
Application for general protections involving dismissal – extension of time – no exceptional circumstances – application dismissed.
This matter concerns an application made by Lucy Parkinson (the Applicant) for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Parkinson’s employment with the Respondent, Latrobe City Council came to an end on Friday, 21 July 2023. Ms Parkinson’s application was received by the Commission on Monday, 14 August 2023 at 2.04 PM AEST, although these dates are contested by her.
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. From the dates referred to above, Ms Parkinson’s application was made 3 days out of time.
Consistent with the Commission’s usual practice on these matters the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Parkinson’s application. Latrobe City Council object to the proposition that the Commission should allow an extension of time for the filing of the general protections application.
In considering an application for an extension of time for the making of a dismissal application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held 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] A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.[2]
In this decision, I have considered whether an extension of time should be granted to Ms Parkinson for the making of her application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.
PRELIMINARIES
The extension of time was the subject of a hearing convened by me on Wednesday, 4 October 2023 at which Ms Parkinson appeared for herself and Mr Gary Katz, a Partner at Meerkin & Apel, solicitors, appeared for Latrobe City Council with permission having been given by me to be represented in these proceedings by a lawyer.
Evidence was received from Ms Parkinson on her own behalf.
Respondent’s request to be represented
For the reasons set out below, I am persuaded that it is appropriate for me to grant permission for Latrobe City Council to be represented by lawyers with me reaching this conclusion having regard to the criteria within s.596 of the Act as well as the particular facts of the matter and the submissions made by each party to me about representation.
Determination of the question of representation requires consideration of s.596 of the Act, which is in the following terms:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
Latrobe City Council relied upon s.596(2)(a) and (b) as supporting its application, submitting:
The Applicant’s inability to afford legal representation is an irrelevant consideration however recognises the onus is on the Respondent to demonstrate the requirements in s.596 of the Act.
Permitting legal representation would assist the efficient running of the matter and the matter has complexity due to the confusion on the expiry of the 21-day timeframe for the lodgment of the application and issues to be clarified in relation to the medical certificates Ms Parkinson has filed.
On the face of it there is no case to answer on the merits of the application on the grounds of the general protections claim.
Latrobe City Council does not have any staff with experience of running contested arbitration matters of this nature.[3]
Ms Parkinson objects to the Respondent being legally represented as she did not receive notification of the Respondent’s application for representation until the day prior to the hearing and she is not in a financial position to be represented by a lawyer in the hearing. She submits that it would be unequally weighted if the Respondent were to be represented.[4]
The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[5]:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[6]
It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[7] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[8] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[9] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[10]
In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[11] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[12] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[13]
I was satisfied that representation of Latrobe City Council by lawyers had the likelihood of enabling the matter to be dealt with more efficiently taking into account the complexity of the matter. The relevant complexities in the matter are the contest between the parties as to when Ms Parkinson’s application was lodged in the Commission; when the statutory time-limit finished; and whether the matters put forward by Ms Parkinson in support of an extension of time amounted to exceptional circumstances.
I am not though satisfied of the matters within s.596(2)(b), that it would be unfair not to permit legal representation as Latrobe City Council is unable to represent itself effectively. Senior Deputy President Richards considered the operation of s.596(2)(b) at length in CEPU v UGL Resources (which consideration has not been disturbed by Govender). I do not repeat his consideration here, other than to note it and that he concluded “the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held”.[14] I doubt very much from the events associated with this file that no person employed within Latrobe City Council, whether legally trained or not, would be unable to represent the company in these proceedings, at least in the manner of summarising the salient points of the Respondent’s jurisdictional objection. Latrobe City Council has therefore failed to satisfy me that s.596(2)(b) is a ground for consideration of a grant of legal representation.
As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[15]
Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I considered that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.
It follows from a grant of permission for legal representation to the Respondent that some measure of unfairness flows to the Applicant, however the need for Latrobe City Council’s case to be presented in an orderly and competent manner likely outweighs the disadvantage to the Applicant, whether actual or perceived. On balance, I considered that the matter of potential efficiency to be gained through the grant of representation outweigh the potential for imbalance for the Applicant in the hearing. Latrobe City Council was therefore granted permission to be legally represented in the hearing.
Applicant’s request to call an additional witness
In the afternoon the day prior to the hearing Ms Parkinson sent an email to my Chambers asking “[i]f it is still possible to call in witnesses, I would like to include Gonzalo Varela, my job share partner.” Mr Varela is the Applicant’s husband.
I caused correspondence to be sent in response advising:
“…
The Directions issued in the above referenced matter required you to file your material by 4.00PM Thursday 14 September 2023. That was your opportunity to put forward your evidence in support of an extension of time and that opportunity has now ended.
Commissioner Wilson advises if you seek to have Gonzalo Varela give evidence, you will need to apply for such in the determinative conference/hearing providing persuasive reasons for doing so and for failing to provide a written witness statement in compliance with the Directions. A written witness statement would also be required to be filed and served.
…”
At the start of the objections hearing Ms Parkinson again requested Mr Varela be able to give evidence. I advised that I would need to receive an explanation from her as to why she had not previously filed a witness statement for Mr Varela and would seek the views of the Respondent on the subject.
Ms Parkinson explained that the reason she had not previously provided a witness statement was because the Directions correspondence was sent to an incorrect email address. I do not accept this explanation for two reasons.
First, the Directions were sent by the Commission to the email address Ms Parkinson provided on her Form F8. Ms Parkinson said she did not find about the Directions until “about 2 PM on the Thursday the 14th of September”[16] and she said she did not have time to receive a witness statement from Mr Varela prior to the deadline for filing. Amongst other things the Directions required her to file and serve a “signed and dated statement of evidence for any witness to be called”.
Second it is apparent from the file that Ms Parkinson was aware of the Directions email sent by my Chambers. While Ms Parkinson asserts she was not provided with the Directions until 14 September 2023 the email chain attached to the lodgement email of Ms Parkinson’s submissions shows a different situation:
The submissions are from Ms Parkinson’s googlemail account and are date-stamped 14 September 2023 at 3:39 PM;
The covering email shows the Directions were received at the hotmail account stated on the application form as being Ms Parkinson’s email address on 7 September 2023 at 10:49 AM;
The hotmail account then forwarded the email to Ms Parkinson’s googlemail account on 8 and 13 September 2023.
Ms Parkinson also said she was unsure as to whether there was a conflict of interest with Mr Varela filing a witness statement in support of her application as he had filed his own application in the Commission.[17]
Ms Parkinson submitted that Mr Varela would give evidence that he was in hospital for five days preceding the lodgement of her application in the Commission, he was her job share partner and was a witness to events, and his general illness and hospitalisation she submits forms a part of her general protections application.
The Respondent objected to Mr Varela being called as a witness as they have not seen a witness statement and they raised issues with the dates of the medical certificates provided by Ms Parkinson.
I refused Ms Parkinson’s application to bring forward evidence from Mr Varela in these proceedings at this time. The Directions issued on 7 September 2023 required Ms Parkinson to file her material in support of an extension of time for the filing of her application by 4.00 PM Thursday, 14 September 2023. This was complied with. At no stage between 14 September and 3 October 2023 did Ms Parkinson seek to bring forward evidence from Mr Varela. As there was no communication until the afternoon prior to the hearing Ms Parkinson was on notice from the time of my Chambers’ response to her on 3 October 2023 that Mr Varela could only be brought froward as a witness if she provided an acceptable explanation as to why an earlier application for his attendance had not been provided as well as that she filed and served a written witness statement for Mr Varela. Neither were done.
BACKGROUND
Ms Parkinson commenced employment with the Respondent in a job-share arrangement with her husband on Monday, 23 January 2023, and according to the letter of termination was employed as a Creative Experience Programmer – LRG (Latrobe Regional Gallery).
The role Ms Parkinson performed was “responsible for designing, developing and delivering contemporary and engaging arts experiences and enrichment programs for children, young people and adults.”[18]
Ms Parkinson was dismissed during her 6-month probationary period with the termination of employment effective Friday, 21 July 2023. The termination was notified in a telephone call on 21 July 2023. A letter of termination dated 21 July 2023 and signed by the Chief Executive Officer stated “[t]he Probation clause of your contract provides that during the probationary period your employment can be terminated by either party on one week’s notice or by the payment of one week’s remuneration package in lieu thereof. Council has elected to provide you with a payment of one week’s pay.”
Ms Parkinson was not required to work out her notice period.
LEGISLATION
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
Two threshold questions for consideration are the date on which the statutory time limit expired and the date on which Ms Parkinson’s application was lodged in the Commission.
Date of expiry of the statutory time limit
A general protections application involving a dismissal must be made “within 21 days after the dismissal took effect”.
Ms Parkinson was notified of her dismissal in the phone call that took place on Friday, 21 July 2023 after which she was provided with a letter of the same date confirming her dismissal. The letter stated her employment “will be terminated effective today” and that she would be provided with a payment of one week’s pay in lieu of notice, however she is “not required to work out the notice period”. This is therefore not a case in which advance notice of termination was given and a period of notice then worked out. In such case the final day on which work was performed is the date upon which the termination of employment took effect.
As a result, the day Ms Parkinson’s dismissal took effect was Friday, 21 July 2023.
It has been held by the Full Bench that “[t]he 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.”[19]
The day the dismissal took effect was Friday, 21 July 2023 and the 21-day period started on the day after; that is Saturday, 22 July 2023. The final day for an in-time lodgement was therefore Friday, 11 August 2023.
Ms Parkinson has made several references to the last day for an in-time filing being Saturday, 12 August 2023. She is incorrect in that matter. The final day was the day before, Friday, 11 August 2023.
The date on which Ms Parkinson’s application was lodged
The application I am presently dealing with is date-stamped as having been received through the Commission’s Online Lodgment System (OLS) on Monday, 14 August 2023 at 14:04 AEST.
Ms Parkinson asserted in her evidence variously that she had either “uploaded” or “lodged” the Form F8 (the General Protections Application Form) at a date and time earlier than when she lodged the Form F80 (the Fee Waiver Form). The assertions are construed by me as a claim by Ms Parkinson that her General Protections Application was “made” (being the term used in s.366(1)) at a time earlier than the date and time shown on the Commission’s lodgement receipt.
Ms Parkinson’s application as made and presently being dealt with in this decision included a particular googlemail address. Enquiries made by my Chambers of the Commission’s Registry show that a user account was created using the same googlemail address on Saturday, 12 August 2023 at 23:56 and that a document was then “submitted” (being the language used in the Registry’s report) to the Commission on Monday, 14 August 2023 at 2:04 PM. As Ms Parkinson has not provided any documentary evidence to support her claims that an earlier application was “made” I do not consider it appropriate to require the Registry’s IT vendor to produce through an Order of the Commission any information it may hold about Ms Parkinson’s activities in the OLS prior to Monday, 14 August 2023 at 14:04 PM.
In the course of her submissions Ms Parkinson also referred to having made a phone call to the Commission’s call centre. Such call was established as having taken place on Monday, 14 August 2023 at about 12.18 PM. The call was accessed with the consent of both parties who then had an opportunity to review what was said and provide submissions about its contents. Neither party provided any submission on the content of the call recording within the timeframe provided in my direction. After the timeframe Ms Parkinson provided a lengthy response addressing a number of matters which did not given an explanation about the content of the call recording.
At best Ms Parkinson can point to an OLS lodgement account being created before midnight on Saturday, 12 August 2023. Her oral evidence suggests she may have then partially completed an application form, but not actually lodged it in the required manner. As the form was not completed and submitted it is not a valid lodgement. The situation is analogous to a person who in past years attended one of the Registry’s front counters, asked for a general protections form and a pen and then proceeded to fill in the form. The form would not be accepted as lodged until it was completed and handed over to a Registry staff member and date stamped. Neither would it be accepted as lodged if, part way through completion the person filling in the form became distracted and left the premises, leaving the form on the front counter.
Whether it is a good-old fashioned mechanical date stamp or a computerised date stamp, these things exist for a purpose – to evidence when a lodgement has been made. An application is not made until it has been timestamped.
The only lodgement made by Ms Parkinson was the one date stamped as having been received in the Commission’s OLS on Monday, 14 August 2023 at 14:04 AEST. The lodgement was made 3 days outside of the statutory time-limit. Since that is the case an extension of time is required for the continuation of Ms Parkinson’s application.
Extension of time – the criteria within s.366(2)
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”.[20]
In considering whether an extension of time should be granted to Ms Parkinson, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
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 for the delay which makes it equitable to so extend.[21] 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.[22] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[23] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[24]
The “delay” to be considered in this case is the period it took after the prescribed period for Ms Parkinson to lodge her application. With Ms Parkinson’s employment ending on Friday, 21 July 2023, for an application to be within time it would need to have been made before midnight on Friday, 11 August 2023. As a result, the delay to be considered is the period after 11 August 2023 until the actual lodgement dated 14 August 2023.
Ms Parkinson’s explanation for her late lodgement of this matter is twofold, internet connectivity issues and illnesses within her immediate family. A comment made by Ms Parkinson alongside her application provides:
“There will be more information added to my submission after I've talked to lawyers. Although I had uploaded my F8 form, I couldn't press the submit button before 11.59 on Saturday (the 21st day) due to connectivity problems. My late run for submission was also due to multiple illnesses in our family (1 x Peritonitis, 1 x Pneumonia & 3 x gastro), which required hospital visits.”
Ms Parkinson said that she uploaded her Form F8 application to the Commission’s OLS within the 21-day timeframe:
“On Saturday 12th August I, Lucy Parkinson, uploaded my F8 form to the Fairwork portal within the 21 day timeframe. Due to internet connectivity problems, I was unable to add my F80 form or press the submit button.”[25]
Ms Parkinson asserts that the 21-day period for the lodgment of her application ended on Saturday, 12 August 2023. After Mr Katz put to Ms Parkinson that the 21-day period for the lodgment of her application expired on Friday, 11 August 2023 and that she first attempted to upload the Form F8 on Saturday, 12 August 2023 which was already outside of the time period Ms Parkinson said about Saturday, 12 August 2023:
“I was doing this on the last day available for submission, because our family had been plagued by illness during the previous weeks, and the day/ evening of the 12th we had 2 children vomiting with Gastro, one of which also had pneumonia. Furthermore, my husband Gonzalo Varela was still recovering from [a significant illness]. He also had a Fairwork claim due that day, which we managed to submit before we had connectivity problems.”[26]
Ms Parkinson said that she uploaded the application within time but was not able to do so earlier because for the entire week she was in the hospital with her children and her husband. She said 5 of the 7 previous days she had caring responsibilities for her children and husband who were ill, and the Saturday was the first time that she was not in hospital and had the opportunity to upload the application. Ms Parkinson confirms that it was Saturday, 12 August 2023 that she attempted to submit the claim. She said she did start the claim on the Friday but did not attempt to submit until the Saturday. If the claim to have started the application on Friday, 11 August 2023 is to be taken as that Ms Parkinson commenced an online application on that date (as distinct to preparing a paper-based form), such is not supported by the Commission’s OLS which shows an account linked to her actual lodgement was not created until Saturday, 12 August 2023 at 23:56.
Ms Parkinson said that she was told that the cutoff date was midnight on Saturday, 12 August 2023. When asked who she was told this by she responded that she drew this from the Commission’s website and that she confirmed the date with her husband.[27]
Ms Parkinson said that it is not possible to lodge an application through the Commission’s OLS portal after the cutoff date. This contention is not consistent with the fact that she eventually made an online lodgement after the statutory time-limit had expired.
When asked what time of the day on the Saturday she attempted to upload the application Ms Parkinson responded that it was in the evening. She said Mr Varela’s application was uploaded at about 11.00 PM and quickly afterwards she went to upload her application and then needed to attend to her ill children and when she returned the internet had lost connectivity. She said that she had already uploaded the Form F8 but had not yet uploaded the Form F80 (being a fee waiver application) so was not able to upload the Form F80 and submit as she could not establish an internet signal.[28]
When seeking to clarify that her evidence was that she had successfully uploaded the Form F8, Ms Parkinson confirmed that she had. Ms Parkinson was asked how she knew that she had done that successfully, Ms Parkinson said that she called the Commission on the morning of Monday, 14 August 2023 at around 10.00 or 11.00 AM and spoke to a member of staff. She said that the staff member she spoke to told her to send her application through by email and that it might be okay if she uploaded the Form F8 before midnight.[29] When asked why she then waited until the afternoon of that day to submit the application Ms Parkinson said that this was because her husband had a medical appointment at the hospital on Monday, 14 August at 8.00 AM, and that they returned from the appointment approximately 4 hours later at around midday.
Following the hearing, my Chambers enquired with the Commission’s Registry as to the existence of a recording of Ms Parkinson’s conversation with the staff member on 14 August 2023. The call was at approximately 12.18 PM. Permission was sought from the parties to access this call recording. The recording does not support Ms Parkinson’s assertion that she was told she had successfully uploaded the Form F8 before the phone call.
Mr Katz asked Ms Parkinson when she started to complete the details on the Form F8 itself. She stated that she cannot remember if this was the Friday (11 August 2023) or the Saturday (12 August 2023).[30] Ms Parkinson is not able to say with certainty when she commenced filling in the details on the Form F8 nor does not recall the date that she downloaded the Form F8 and Form F80 however submitted that this was before 12 August 2023. Ms Parkinson said that she had a hard copy of the Form F8 that she had completed in the previous days and uploaded the Form into the Commission’s OLS around 11.00 PM on Saturday, 12 August 2023.
Ms Parkinson agreed that Mr Varela was in Dandenong Hospital from 29 June to 14 July 2023, which is a period prior to the termination of her employment. He then was a patient through a hospital at home program.
When asked why she has not presented any evidence of these illnesses with her family during the relevant period to be assessed by the Commission, Ms Parkinson said that she will need to confirm with the hospital as she said these illnesses were in the week prior to the deadline in August and she does not know why the medical certificates show dates in September. Ms Parkinson stated about her family’s illnesses:
“I have attached medical certificates for our trips to the Wonthaggi Emergency Department (8.8.23 & 12.8.23) for my son’s [A and B], during the week preceeding the fairwork appplication cut-off date (12.8.23), as well as a medical certificate for Gonzalo’s attendance of Wonthaggi hospital in the home during the same period.” (spelling as per original)
Attached to Ms Parkinson’s submissions in support of an extension of time are four medical certificates. The details of those are:
Medical Certificate from Monash Health for Gonzalo Varela (Ms Parkinson’s husband). The Certificate states that Mr Varela attended hospital on 3 August 2023 and will be unfit for work from 3 August 2023 to 17 August 2023 inclusive. There is a handwritten notation on the Certificate that “Patient has had ongoing problems since 23/6/2023”.
Medical Certificate from Wonthaggi Hospital for Gonzalo Verela. The Certificate states that Mr Varela attended hospital on 11 August 2023 and was unfit for work from 11 August 2023 to 12 August 2023.
Medical Certificate from Wonthaggi Hospital for [son B]. The Certificate states that the boy attended the hospital on 12 September 2023 with a statement of unfitness “for work” from 12 September 2023. There is no end date. The header to the Certificate states [son B] attended hospital on 12 August 2023.
Medical Certificate from Wonthaggi Hospital for [son A]. The Certificate states the boy attended the hospital on 8 September 2023 with a statement of unfitness “for work” from 8 September 2023 and 12 September 2023. There is no end date. The header to the Certificate states [son A] attended hospital on 8 August 2023.
Ms Parkinson gave evidence that Mr Varela had been ill since 23 June 2023. She said Mr Varela spent approximately 3 weeks in Dandenong Hospital and approximately 6 weeks in a “hospital in the home” program at Wonthaggi Hospital. During this time, she had sole caring responsibilities for her two children.
The Respondent submitted that Ms Parkinson has not provided a credible explanation for the delay, arguing that even on the Applicant’s own version of events she uploaded the Form F8 out of time. The Respondent submitted that Ms Parkinson has not provided any reason why she could not file the application prior to 11 August 2023, being the last day for the filing of the application within time. The Respondent said there is limited relevance to the medical certificates provided and that there is inconsistent evidence on the dates of illness.
The Respondent asserts:
“With the exception of G Varela (who was able to submit a claim), the other referenced dates do not provide evidence of serious illness at the time of the applicant’s claim being due (in the 21 days leading to 12 August 2023, or until 14 August when the claim was submitted).”[31]
After the hearing, three emails were received (two from Ms Parkinson and one from Mr Katz) concerning the inconsistent evidence on the dates of illness on the medical certificates filed. Ms Parkinson said that the incorrect dates are provided in the body of the medical certificates and that the header of the documents provide the correct dates with [son A] admitted on 8 August, Mr Varela on 11 August and [son B] on 12 August.[32]
Mr Katz in reply submitted there remains inconsistencies in the evidence presented by the Applicant relating to all these dates:
“even if [son B] attended the hospital on 12 August 2023, that would still be one day after the 21 day time limit expired. Furthermore, even if [son A] attended the hospital on 8 August 2023, that is still one attendance and examination and there is no suggestion or evidence that he was an inpatient. In any event, in our respectful submission, neither the attendance of [son B] nor [son A] at the hospital on whatever dates they were, are of any probative value in the consideration of the Applicant’s reason/s for her late application.”[33]
Further, the Respondent said that Ms Parkinson was able to correspond directly with the Respondent on Friday, 28 July and Wednesday, 2 August 2023 and that there is no information or evidence that Ms Parkinson attempted to submit her application through alternative methods (such as email).[34] A miscalculation of the 21-day timeframe is also no excuse for a late lodgment.
The Commission has held that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.[35] It is also the case that it is not out of the ordinary course, or unusual, or special, or uncommon for a person to be acting on their own without advice and to have to make an application within the statutory time-limit. Care should be taken by any person contemplating making an application after the end of their employment about the applicable time limit.
Ms Parkinson confirms she was aware of the 21-day timeframe for lodging the application. Ms Parkinson said in her oral evidence that her first priority was the health of her family, and her second priority was the Commission application.
Ms Parkinson is incorrect in her calculation of the 21-day period. Ms Parkinson’s termination took immediate effect on Friday, 21 July 2023. The final day for the lodgment of her application was Friday, 11 August 2023. Ms Parkinson’s evidence, supported by the enquiries made of the Registry, establish that she did not attempt to submit a completed Form F8 before the date and time recorded by the Commission’s OLS, Monday, 14 August 2023 at 2:04 PM.
Although I sympathise with the difficult family circumstances associated with various illnesses, I do not find that the evidence presented provides a credible explanation for the period of delay. Furthermore, Mr Varela’s general protections application was submitted to the Commission on Saturday, 12 August 2023 at 11:05 PM (a matter which is dealt with later in this decision in consideration of s.366(2)(e), matters of fairness as between people in a like position).
Ms Parkinson made no further attempts to submit her application after Saturday, 12 August 2023 until she called the Commission on Monday, 14 August 2023.[36]
What springs from the foregoing events is an explanation on Ms Parkinson’s part for a late application based on two separate grounds; the serious and prolonged illnesses of her family and an erroneous belief about the final day of lodgement coupled with internet connectivity problems experienced at the end of the day Ms Parkinson thought was the final day for an in-time lodgement. Ms Parkinson’s evidence about her family’s illnesses only substantiates that her husband and sons were ill at various times; it does not amount to cogent, persuasive evidence that their illnesses were so grave that she could not attend to her personal affairs. The internet connectivity problem, experienced at the end of the day after the final day, merely highlights the risks associated with making a last-minute application (as Ms Parkinson believed it was). These grounds, whether individually or collectively, do not sufficiently explain why Ms Parkinson’s application could not have been made earlier and show only that the making of a general protections application was not a priority for her.
As a result, I do not find that Ms Parkinson has put forward an acceptable explanation for the delay in making her application. Therefore, my consideration of this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
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.[37]
Ms Parkinson said she notified Ms Bertoli from Latrobe City Council that she was filing a general protections claim and that she attempted to speak with persons from the Respondent after her dismissal. She said that the opportunities available to her were closed to contest her dismissal as she submits that other gallery staff were advised not to speak to her.[38]
Ms Parkinson confirmed that she consulted with a law firm after her termination and before she lodged the application and believed it to be on Tuesday, 1 August 2023. Ms Parkinson did not retain the firm to submit the application on her behalf due to financial restraints. Ms Parkinson is not a member of a union.
The Respondent submits that Ms Parkinson has not taken any action other than the filing of the general protections application to dispute her dismissal.
Ms Parkinson has not taken other steps to dispute her dismissal. This is therefore a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 3 days. 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.
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. 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 the 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.[39]
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.
The merits of the application
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.
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.[40]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer 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.[41]
In Ms Parkinson’s case she puts forward that the end of her employment came about as a result of the matters stated in the Respondent’s termination letter, including unspecified conflicts of interest, lack of communication and insufficient management of deliverables, including delays in convening a workshop and an exhibition, all of which she disputes as being valid grounds for her termination. She also argues the general protections contravention as being a decision to dismiss her and her husband as they took leave to travel overseas in order to deal with Mr Varela’s family responsibilities, following the death of his parents. Ms Parkinson also references being dismissed because of making a flexible working arrangements request.
The Respondent submits that this is an unfair dismissal application guised as a general protections application. Further it submits that the right the Applicant relies upon is unpaid leave which Ms Parkinson and Mr Varela were in any event permitted to take and there is no workplace right or legal source to an entitlement to unpaid leave.[42] The Respondent also contends the merits of the application do not reach the low bar of the merits threshold required for consideration in an extension of time matter.
These matters are hotly contested between the parties, with it being possible that each is able to succeed in their case should it progress to determination by a Court, or the Commission if consent for arbitration was given. It is not possible for me to resolve these differences on the basis of the material so far provided to the Commission, and neither is it my role at this stage of the proceedings. I do not accept the Respondent’s contention that the merits of Ms Parkinson’s application fall into a very weak merits category: the merits of her claim could only be determined after hearing all relevant evidence. Accordingly, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Ms Parkinson or to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past.[43]
The only such application known to the Commission at this time is Mr Varela’s general protections application made on Saturday, 12 August 2023 at 11:05 PM.
Mr Varela was dismissed from his employment by Latrobe City Council with effect from the same date as Ms Parkinson, namely Friday, 21 July 2023. It follows from the reasoning above that Mr Varela’s application was also lodged outside of the statutory time limit however that matter was not noticed either by the Commission’s Registry or case management staff or by the Respondent when it filed a response to Mr Varela’s general protections application (which was filed on 11 September 2023, a date after the response was filed to Ms Parkinson’s application, which was filed on 5 September 2023). Mr Varela’s application then progressed to a staff conciliator in front of whom the dispute was settled and the file closed.
Why Mr Varela’s application was not established as being out of time is not evident from the file.
Potentially it would be unfair to Ms Parkinson if she was unable to progress her general protections application when her husband’s application progressed, was conciliated and settled. However, I disregard such consideration in my decision as the progression of Mr Varela’s application was plainly for reason of error. It would be unfair to the broader range of applicants if I took account of and was persuaded to grant an extension of time because of a file that progressed merely because of error and not because of application of the standard principle that there be exceptional circumstance. Error is not an exceptional circumstance, but a diversion from proper process which, in the ordinary course of an ongoing matter would be corrected. Had the error been seen before the file progressed it would have been corrected.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Ms Parkinson and in particular there is not an acceptable explanation for the delay in making her application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Ms Parkinson.
For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Ms Parkinson’s application at the same time as this decision.
COMMISSIONER
Appearances:
Ms L. Parkinson for herself
Mr G. Katz for the Respondent
Hearing details:
2023.
Melbourne (via video conference and audio conference);
4 October.
Final written submissions:
Applicant on 16 October 2023
Respondent on 10 October 2023
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[3] Transcript, PN14-20.
[4] Ibid, PN12.
[5] [2013] FCA 291.
[6] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[7] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, [5].
[8] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[9] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618, [19].
[10] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[11] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, [15].
[12] Ibid, [17].
[13] Singh v Metro Trains Melbourne[2015] FWCFB 3502, [16].
[14] [2012] FWA 2966, [21].
[15] Warrell v Fair Work Australia [2013] FCA 291, [26].
[16] Transcript, PN78.
[17] Ibid, PN80.
[18] Letter of Termination dated 21 July 2023.
[19] Dr Jan Zirk-Sadowski v The University of New South Wales T/A The University of New South Wales Sydney, the University of New South Wales Canberra at the Australian Defence Force Academy[2022] FWCFB 211, [9]; making reference to s.36 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock[2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd[2013] FWC 3593.
[20] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].
[22] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[23] Ibid, [40].
[24] Ibid, [41].
[25] Applicant Witness Statement, filed 14 September 2023, appearing at Digital Court Book p.30.
[26] Ibid.
[27] Transcript, PN159-161.
[28] Ibid, PN176.
[29] Ibid, PN177-188.
[30] Ibid, PN200.
[31] Respondent Outline of Submissions, filed 21 September 2023, appearing at Digital Court Book p.58.
[32] Email from Applicant to Fair Work Commission, 4 October 2023, 12.16 PM.
[33] Email from Mr Katz to Fair Work Commission, 5 October 2023, 11.57 AM.
[34] Respondent Outline of Submissions, filed 21 September 2023, appearing at Digital Court Book p.59.
[35] Nulty v Blue Star Group[2011] FWAFB 975, (2011), 203 IR 1, [14].
[36] Transcript, PN263.
[37] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[38] Transcript, PN320.
[39] 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].
[40] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[41] 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.
[42] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15.
[43] Wilson v Woolworths [2010] FWA 2480 [24]‒[29].
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