Macdonald v Multiple Sclerosis Society of Queensland
[2022] FedCFamC2G 727
Federal Circuit and Family Court of Australia
(DIVISION 2)
Macdonald v Multiple Sclerosis Society of Queensland [2022] FedCFamC2G 727
File number(s): BRG 154 of 2022 Judgment of: JUDGE VASTA Date of judgment: 15 August 2022 Catchwords: INDUSTRIAL LAW –– extension of time – reason for failure to file on time – arguable case – termination within probationary period – application dismissed Legislation: Fair Work Act 2009 (Cth):s 368,s 370(a)(ii) Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 15 August 2022 Date of hearing: 15 August 2022 Place: Brisbane Counsel for the Applicant: the Applicant appearing on her own behalf Solicitor for the Respondent: McCullough Robertson Lawyers ORDERS
BRG 154 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TINA MACDONALD
Applicant
AND: MULTIPLE SCLEROSIS SOCIETY OF QUEENSLAND
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
15 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed on 6 April 2022 and amended on 8 August 2022 be dismissed.
THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 6 April 2022, the Applicant, Tina MacDonald, filed an application in this Court seeking that the Court make declarations that the Multiple Sclerosis Society had breached the general protections sections of the Fair Work Act 2009 (Cth) (“the FW Act”). The Respondent, Multiple Sclerosis Society of Queensland, filed a response on 14 April 2022 asking that the matter be dismissed for failure to comply with s 370(a)(ii) of the FW Act.
The background to this matter is that the Applicant began working for the Multiple Sclerosis Society in 2021. She was terminated from that position on 28 September 2021.
The circumstances surrounding those last months of her employment and her termination were the subject of proceedings before the Fair Work Commission (FWC) where the Commission ended up, on 21 January 2022, issuing a certificate pursuant to s 368 of the FW Act. That certificate read that:
The Fair Work Commission conducted a conference with a conciliator on 10 December 2021 and a conference with a member on 21 January 2022.
Pursuant to s.368(3)(a) of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been or are likely to be unsuccessful.
There is an important note to this certificate, and that is that:
…the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a civil remedy order, unless the Court extends the time for making such an application.
The Applicant did make such an application, and she filed that on 4 February 2022. The application was a small claim under the FW Act. It detailed that she was claiming that the employer had breached a National Employment Standard by not notifying her as per the NES or paying her correctly, that the employment contract was breached by the employer reducing hours and location of employment without consultation or agreement by both.
The remedy sought was wages and “other”, with a notation that this was as attached. Attached to the claim was a statement by the Respondent which goes for quite some length. The Applicant claimed that the Respondent had inaccurately noted the commencement date of the employment; the Respondent wrongfully terminated the employment relationship on the basis it was in the probation period, to which the Applicant added:
However, I successfully completed my probation period by five days.
The claim was the Respondent withheld payment of final termination entitlements by 15 days; that the Respondent had taken adverse action against her by altering the terms and conditions of her employment to her financial detriment and without the right of consultation; that the Applicant believed this to be a wrongful termination and believed this to be:
…because I exercised my workplace rights and the rights of vulnerable clients who I was supporting.
The remedy that was sought was a monetary settlement totalling $16,135 for:
•owed entitlements of $990 –being for wages owed as per her contract:
•loss of wages between employment of $1980, being 2 weeks pay;
•1week stress leave payment - $990.
•lawyer’s fees of $295
•monetary compensation of loss accrued leave entitlements during the period between ‘casual to conversion of permanent’ with new employer, breaches, bullying, hurt, humiliation, harsh and unjust treatment subjected by the Respondent – $11,880, being 3 months wages based on my average hours worked for the last 3 months.
•The dismissal being treated as a resignation
•Statement of service (stating how long the employee worked for the employer and what they did).
The matter went before the Registrar because it was a small claims matter. The Applicant has said that, during the hearing before the Registrar, the Registrar told her that she was in the wrong jurisdiction to be pressing a general protections claim and that she told the Registrar that she would be pursuing the general protections wherever she could.
She said that she asked the Registrar where she should be filing such a claim, and the Registrar told her that he did not give legal advice. However, the order that was made by the Registrar simply reads:
That the Court orders by consent
1. that the respondent pay the applicant the sum of $990 as compensation for her wages claim;
2. that the payment be made within 28 days;
3. That all other aspects of the application be dismissed.
4. That there be no order as to costs.
It is significant to me that “all the other applications” were dismissed and that this was an order by consent. The Applicant has given evidence from the Bar table that this was simply the Registrar telling the parties that he was not going to hear any other aspect of the claim and asked if the $990 was a matter that they agreed with.
The Applicant said it was at that stage that she was the one who said that she would still continue to pursue this matter.
The Applicant filed the current application on 6 April 2022, as I have previously mentioned. The application is therefore out of time. It was filed 75 days after the Fair Work Commission certificate was issued and 29 days after the small claims matter was resolved. The Applicant does need this Court to grant an application for extension of time within which to file for this matter to continue. The Respondents have taken the same attitude that they had taken in their response which is that the matter simply needed to be dismissed.
The Court looks at three aspects in looking at whether an extension of time ought to be granted. They are: what is the excuse for the failure to file on time? Secondly, what prejudice is there to the Respondents? Thirdly, is there sufficient merit in the application proper that the Court would say that “there is an arguable case to be determined”.
With regard to the excuse, the Applicant said that she had no idea what to do after the Fair Work Commission issued its certificate. That does not seem to make sense given the notation, or rider, to the certificate which I have already read into the record.
The Applicant said to me that those words are “legal gobbledegook” to her and that she simply did not understand what that meant. She did, however, do some of her own research, and she found that there was a process which would allow her to claim less than $20,000 in a less formal way, and she therefore followed that research, which led to the filing of the small claims matter.
However, taking on board what the Applicant says happened on that occasion, it would have been clear to her that, if the Registrar had in fact said that there was no jurisdiction and that he could not hear the matter, having a look at what was on the certificate’s rider, she should file this application in either this Court or the Federal Court.
Her personal situation was laid bare in an affidavit that she filed on 7 July 2022, in which she said this:
2. I was unable to afford legal representation, as I didn’t have a job. I therefore relied on my own research in order to progress the matter which I intended to do.
…I researched the FCFC website and found the small claim division. I believed this to be the next step on that basis.
4. On 4 February 2022, I filed the application…I was not informed that this was the incorrect jurisdiction, nor did I have any reason to believe otherwise that this was not the correct jurisdiction.
5. I filed this application within 14 days from the date of the certificate being issued.
6. On 8 March 2022, Registrar Buckingham made orders by consent and verbally informed the parties that the claim could not be dealt with in that jurisdiction.
7. At that time, I was caring for my two daughters, who both suffer from cystic fibrosis, while balancing a casual job…
8. Between 30 March 2022 and 14 April 2022, my eldest daughter was admitted to hospital…. I spent a lot of time caring for her. I have a younger daughter with the same illness, and I had to take care of her in addition to my job.
9. I attempted to engage legal representation on a pro bono basis, as I was still unable to afford legal fees.
10. On 6 April 2022, the application was filed in the Fair Work Division of the Federal Circuit and Family Court.
11. This process has been emotionally taxing and an enormous time commitment in addition to the existing workload I have which includes caring for my two daughters and attempting to attend work on a casual basis in between hospital visits, medical appointments and other ad hoc appointments as required.
12. I respectfully request that his Honour to consider my application for an extension of time be granted for those reasons outlined above.
The Applicant also sent medical certificates relating to her child, as well as employee roster documents for her present job.
Still, the Applicant did eventually find the wherewithal to realise that she had to file in this Court, and there seems to be no explanation as to why that epiphany did not happen after 8 March but waited for quite some other time. In any event, that is only one aspect.
The second aspect, as to the prejudice to the Respondent, is not a matter of which I have evidence, but rather I have had submissions from the Bar table that the Respondents believed that all matters were over as at 8 March 2022, when Registrar Buckingham made his orders which dismissed every aspect of the claim except for the $990, and that that was done by consent. I take that into consideration.
But obviously, the most important aspect is whether there is an arguable case, or “what are the merits of the application?”
It is trite to say that a general protections claim is one of the more difficult aspects of the FW Act for lawyers to come to grips with, let alone laypersons. The application that the Applicant filed on 6 April was vague and inchoate. I gave her the opportunity to file a new application so that one could see whether or not there was a true allegation of adverse action. The Applicant filed a new application last week.
In that application, the Applicant spoke of three instances where she exercised a workplace right. The first exercise was, she says, complaining about the rosters and the hours and places in which she had to work. The second workplace right was making a complaint that the Multiple Sclerosis Society was not adhering to its own protocols with regard to looking after patients, and the third workplace right was her making a claim before the Fair Work Commission, such a claim being filed days before her termination.
This new application does certainly particularise what it is that the Applicant is claiming. However, one has to look at the material that the Applicant has provided to the Court. Of note is the employment contract. The employment contract, at clause 4, talks of the probation period. 4.1 says:
4.1 Your employment will initially be subject to the probation period specified in Schedule 1.
4.2 The probation period does not alter the minimum employment period specified in the Fair Work Act 2009 (Cth) (“the Act”).
4.3 Your employment may be subject to review during the probationary period.
4.4 Unless terminated pursuant to this Agreement, your employment will continue after the expiry of the probation period.
4.5 MS Queensland may terminate your employment during your probationary period by giving you one week’s notice or payment in lieu of notice. Should you wish to terminate your employment during the probationary period, you must provide one week’s notice.
Schedule 1 to that contract details the aspects of the employment. Instructively, it details that the commencement date of the employment is Tuesday, 30 March 2021. The location of employment is all MS Queensland accommodation locations. The probation period is six months. The remuneration is $29.2967 per hour exclusive of superannuation. The payment period is fortnightly. The roster is set out quite extensively. Her shift-worker status is noted, and the quantum of annual leave is noted.
Schedule 1 clearly shows that the commencement date, being Tuesday, 30 March and the probation period being six months, means that the probation period ends on 30 September 2021.
The termination occurred on 28 September 2021, where the employer wrote to the Applicant saying:
We have made various attempts to meet in person with you to discuss the above matter.
That being termination of employment during probation:
This letter confirms that the employer has decided not to continue your employment beyond your probationary period. In accordance with the NES, as outlined in the Fair Work Act, we are notifying you of this decision. We have tried to work with you in conversations and emails with your regional manager to improve your performance and conduct.
It later says:
You have repeatedly refused to work with us collaboratively. In review of your performance and conduct within probation, you have not demonstrated satisfactory conduct, which has led to the decision to cease your employment. With that said, your employment is ceasing for the following reasons –
and then five reasons are given, and the letter ends soon afterwards.
On the evidence that the Applicant has presented to me, the probationary period ended on 30 September 2021, and the termination occurred two days before that probationary period.
This is the contract that the Applicant has said is the contract that has determined her employment. Having seen this, I do not find that there is an arguable case in this matter. That is so even though the onus would be on the Respondents if it were that the Applicant had proved that there had been adverse action and had been able to prove that she had exercised workplace rights. Section 361 then reverses the onus.
Because of this aspect (that the termination occurred during the probationary period), together with the flaws I have seen in the excuse, together with the prejudice to the Respondents, it all leads me to the point where I cannot, in the exercise of my discretion, grant the extension of time.
Therefore, the application that was filed on 6 April 2022 and amended on 8 August 2022 is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 5 October 2022
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