Maren Nickel v Life Without Barriers LWB
[2023] FWC 1268
•1 JUNE 2023
| [2023] FWC 1268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Maren Nickel
v
Life Without Barriers LWB
(C2023/2169)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 1 JUNE 2023 |
Application to deal with contraventions involving dismissal – jurisdiction – whether application out of time – second application followed dismissal of first application on procedural grounds – rights of appeal not exercised – circumstances not exceptional – application dismissed
On 16 April 2023 Maren Nickel (Ms Nickel or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with her dismissal.
Ms Nickel’s application is against her former employer Life Without Barriers LWB (Life Without Barriers, the respondent or the employer), which she alleges committed the contraventions.
The respondent opposes the application. It filed a response on 16 May 2023 raising a jurisdictional issue.
The jurisdictional issue is that the application was filed out of time and that time for late lodgement should not be extended.
Ms Nickel submits that her application is not out of time and, in the alternative, if so then time should be extended.
This decision deals solely with the out of time issue.
I issued directions on 24 May 2023 after conducting a directions hearing that day.
By consent, the parties requested that the jurisdictional issue be determined on the papers and on submissions made at the directions hearing and after each had an opportunity to file further materials.
Also by consent I have regard to the Commission’s electronic document record system in setting out the relevant factual chronology.
I determine the out of time issue on the basis of materials filed, submissions made and documents on the Commission record noting that opportunities were provided for Ms Nickel to file further materials by 26 May (which she did on 24 May) and the employer by 29 May (which it elected not to do).
Facts
Life Without Barriers is a not for profit organisation providing services to vulnerable and disadvantaged persons.
Ms Nickel was employed on 16 January 2023 as a Community Rehabilitation Support Worker on a six month probationary period.
Ms Nickel was dismissed five weeks later on 23 February 2023 for cause with one week paid in lieu of notice.
On 16 March 2023 Ms Nickel, under cover of an email to the Commission, filed a general protections application (F8) under s 365 of the FW Act alleging that the dismissal on 23 February 2023 was adverse action in breach of workplace rights (the first application).[1]
The application was undated.
Applications under s 365 are required to be accompanied by a filing fee or an application for fee waiver. No fee is payable if the fee is waived by the Commission.
The first application was allocated to Deputy President Clancy.
By order dated 5 April 2023[2] and for reasons published that day[3] Deputy President Clancy dismissed the application. The Deputy President concluded:
“In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. The many attempts by the Commission to contact Ms Nickle (sic), the numerous reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of the circumstances to dismiss the purported application.” (footnotes omitted)
On 16 April 2023 Ms Nickel, under cover of an email to the Commission, filed a further general protections application (F8) against the same employer under s 365 of the FW Act alleging that the same dismissal on 23 February 2023 was adverse action in breach of workplace rights (the second application).[4]
The second application was in identical form and content to the first application. It too was undated.
The second application was accompanied by an application for a waiver of the filing fee.
On 20 April 2023 an officer of the Commission waived the filing fee.
On 3 May 2023, in the space of seventy minutes between 3.39pm and 4.47pm Ms Nickel sent the Commission twelve emails attaching material in support of the second application.
On 4 May 2023 and apparently following contact with the Commission’s helpline, an officer of the Commission sent Ms Nickel (by email) a blank final page of the form F8 asking her to “sign and date the form before your case can go ahead”.
On 4 May 2023 Ms Nickel returned the final page with a signature and a date “16/4/2023”.
On 9 May 2023 at 9.43am the Commission wrote to Ms Nickel and advised that the second application may have been filed beyond the 21-day statutory time period required by the FW Act and that an extension of time may be required.
On 9 May 2023 at 12 noon Ms Nickel replied:
“I lodged the application 16. March 2023.
The date is wrong in application, it was 16. March, not late.
Thank you,
Maren”
At 4.36am the following day, 10 May 2023, Ms Nickel sent a further email to the Commission as follows:
“Dear FWC
Please see attached dates form.
Unfortunately, I had dated it wrong before.
I send 16. March the application for general protection.
Thank you for your help,
Maren”
The form attached by Ms Nickel was another final page of the F8 application form signed by Ms Nickel but this time she dated it “16/3/23”.
The second application was allocated to me.
On 16 May 2023 the employer filed a response.
On 18 May 2023 I listed the matter for a directions hearing on 24 May 2023.
I conducted the directions hearing on 24 May 2023 at which time Ms Nickel confirmed her position to be that no extension was required or that in the alternative an extension was sought and should be granted, and made submissions on those issues. The employer confirmed its position that the application was filed late and opposed an extension. As noted, both parties sought that the matter be determined on the papers subject to an opportunity to file further materials.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 provides a time limit for the filing of applications under s 365:
“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.”
Is the application out of time?
It is not in dispute that Ms Nickel was dismissed by Life Without Barriers on 23 February 2023 with immediate effect, with one week being paid in lieu of notice.
For the application to be within time it is required to have been filed by 16 March 2023.
Ms Nickel submits that the application is not out of time because the application is the same application as that filed on 16 March 2023 (the first application).
I do not agree.
Firstly, both applications were separately made within the meaning of the FW Act. Each was made electronically under cover of an identical email sent on different dates (16 March 2023 and 16 April 2023 respectively) with the covering email stating:
“Please, do NOT pass my matter on to Commissioner Platt, Adelaide FWC, under any circumstances.”
It would appear that Commissioner Platt had conducted a hearing on 14 March 2023 on an earlier s 774 application made late by Ms Nickel against a different employer and, by decision on 21 March 2023, had dismissed that application.[5]
Under the FW Act, an application sent electronically is made when the application is received by the Commission.
The second application was made on 16 April 2023 because it was sent under cover of the aforementioned email and received on that date whereas the first application was made on 16 March 2023 because it was sent under cover of an email received on that earlier date.
Nor can it be said that Ms Nickel’s email of 16 April 2023 was simply re-sending for information purposes an earlier application. Her covering email of 16 April 2023 did not purport to do so, nor when sent was the application re-sent along with the 16 March 2023 covering email. It was sent afresh.
Secondly, the first application was not in existence on 16 April 2023. It had been dismissed by the Commission on 5 April 2023 upon the order of and for reasons set out by Deputy President Clancy. Given that, the application made on 16 March 2023 cannot be the application currently before the Commission.
Accordingly, whilst the second application is in identical form and seeks to invoke the same jurisdiction concerning the same dismissal and is based on the same grounds as the first application it is not the same application.
The second application is out of time and the delay period is the period from 17 March 2023 to 16 April 2023 (inclusive). This is a period of thirty-one days.
If the application is to proceed an extension of time is required.
Should time be extended?
I now consider whether an extension of time should be granted.
Being thirty-one days out of time, Ms Nickel’s application can only proceed if she establishes “exceptional circumstances” within the meaning of s 366(2).
Principles that have been applied by the Commission under s 394(3) of the FW Act are relevant to the consideration of applications for an extension of time under s 366(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] A decision whether to extend time involves the exercise of a discretion.[8]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[12]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[13] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[14]
Ms Nickel’s explanation for the delay is twofold:
· she was unaware of the decision of Deputy President Clancy or of appeal rights against that decision; and
· she was confused about whether her first application had been granted a fee waiver.
The proposition that Ms Nickel was unaware of the decision of Deputy President Clancy is unsustainable. Commission records indicate that the chambers of the Deputy President attempted to email Ms Nickel a copy of the Deputy President’s decision and order at 4.46pm on 5 April 2023 but the email failed to deliver and was re-sent by chambers at 2.16pm on 11 April 2023. Moreover, Commission records indicate that Ms Nickel corresponded with the chambers of the Deputy President on the matter the following day (12 April 2023). Ms Nickel did not demur from the suggestion that she had corresponded with the Deputy President’s chambers following the decision and prior to making the second application when I drew this to her attention at the hearing.
It is evident that Ms Nickel disagreed with the Deputy President’s decision. Being a decision and order of the Commission, Ms Nickel had the right to seek permission to appeal the decision under the provisions of the FW Act within twenty-one days of it being made.[15] She did not do so. Although it is evident that Ms Nickel was not notified of the Deputy President’s decision and order until six days after it was made (due to an earlier email bounce-back), the notification received on 11 April 2023 was well inside the time period for lodging an appeal.
I now deal with Ms Nickel’s related submission that she made the second application because she was not aware of appeal rights.
For the following reasons I do not consider this to be an acceptable reason for the delay.
It is well established that mere ignorance of the law is not a basis for seeking an extension of time. Ms Nickel had at least some basic awareness of the FW Act because the first application was made under the same Act that provided for appeal rights.
I need not concern myself with whether Ms Nickel had broader or other knowledge of the FW Act though it would appear from her covering email referencing Commissioner Platt and from Commission records that Ms Nickel had made multiple earlier applications against different parties utilising the FW Act including a separate matter under s 773[16] that was before me and had been the subject of directions but was discontinued by Ms Nickel two days prior to the hearing of this extension of time matter.[17]
I now deal with Ms Nickel’s submission that she was confused about whether a fee waiver had been granted on the first application.
It is apparent from Ms Nickel’s email correspondence of 12 May 2023 with the chambers of Deputy President Clancy that she professed confusion:
“Dear FWC,
I am very confused.
I thought the application fee was waived?
I send the waiver fee application…Why did you not receive it?
I talked to FWC about the fee waiver.Thank you,
Maren”
Ms Nickel’s put it this way in her submission to me:
“First Application was dismissed due to Administrative confusion over Fee Waiver. Very confused, why? Speaking to different FWC Staff and being told my initial application 16. March 2023 & Fee Waiver was accepted.”
No evidence was led to advance the proposition that the fee waiver on the first application was granted. It is readily apparent from Deputy President Clancy’s decision that Ms Nickel’s apparent lack of responsiveness to the requests by his chambers for evidence of a fee payment or a valid application for a fee waiver or a grant of a fee waiver were grounds on which the first application were dismissed.
As noted, if Ms Nickel maintained that the Deputy President made an error of fact or law in reaching the conclusions made or had not taken into account relevant considerations (such as objectively established confusion) then Ms Nickel had appeal rights (subject to permission being granted). The very basis on which this extension of time is sought on the second application are matters directly relevant to the decision made by the Deputy President on the first application. Thus they were matters capable of being agitated as grounds of appeal.
Aside from whether Ms Nickel was confused about a fee waiver, the making of a late application in circumstances where appeal rights existed that were able (with permission) to test the correctness of the decision to dismiss the identical earlier application, even where dismissal occurred for procedural reasons, is a compelling reason not to consider this explanation for delay as acceptable.
The FW Act provides an orderly statutory scheme for appeal rights (with permission) against decisions and orders. It does not contemplate an alternative pathway for an unsuccessful applicant to file a fresh but identical application agitating the same issues. Granting extensions of time for second applications filed late simply because an unsuccessful applicant was unaware of appeal rights flies in the face of the statutory scheme and would have the potential to materially compromise the fair, just and efficient performance of the Commission’s functions.[18]
Ms Nickel’s first application was dismissed with reasons provided and she was notified of the Deputy President’s decision and order six days later. Aside from ignorance of the law, there was nothing exceptional that warranted a fresh but identical application being made in lieu of seeking permission to appeal.
The reasons for delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
Ms Nickel was given written notice of dismissal and knew her employment ended and why.
I take into account that Ms Nickel’s first application put the employer on notice that she contested her dismissal on the same grounds she again does so. That first application was filed on the twenty-first day after her dismissal took effect. From that date onwards, and thus during the entirety of the delay period, the employer was aware that its dismissal was disputed and being litigated.
This factor weighs somewhat in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
If time is extended, the claim would have to be further responded to by the employer, involving time and cost.
I do not consider there to be any material prejudice to the employer should time be extended. That is particularly so in circumstances where the employer has been on notice throughout the delay period of the dismissal being disputed and litigated on the grounds stated in the second application.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits of the application (s 366(2)(d))
I have no evidence before me to form any view, even a provisional one, on the merits.
I note that general protections applications are accompanied by a reverse onus of proof on certain matters, and note further that the employer advances specific reasons for termination in its dismissal letter which, if proven, may provide a basis for meeting that reverse onus. However, clearly Ms Nickel disputes the lawfulness of those reasons and the employer’s conduct.
In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
Ms Nickel submits that time should be extended because of “the impact of the extreme abuse I and my three daughters, having to experience the ongoing systemic abuse by Employers, my mental health and just having bought a house as a single mother with three daughters, I am in survival mode”.[21]
Clearly, Ms Nickel considers that being unable to pursue this litigation would be unfair to her.
However, perceived unfairness to an individual is not a matter that involves fairness between persons in similar positions.
I take into general account Ms Nickel’s concern that she would be disadvantaged if unable to pursue this litigation. That said, an assertion of “systematic abuse by employers” is an assertion not a fact. Moreover, that Ms Nickel appears to have made multiple earlier claims under the FW Act alleging unlawful conduct by employers does not make it so. Ms Nickel presented no evidence of findings or decisions made that objectively sustain an assertion of unlawful conduct let alone systematic abuse.
Conclusion
The period of delay being thirty-one days, in the context of a statutory twenty-one day time frame, is not insignificant.
However, that the application is in identical form to an earlier application made in time that raised the same issues minimises the materiality of the length of delay and to the extent that the earlier application put the employer on notice weighs somewhat in favour of a finding of exceptional circumstances.
However, the explanations for the delay are unconvincing. In particular, the making of a late application in circumstances where appeal rights existed that were (with permission) able to test the correctness of the decision to dismiss the earlier identical application, even where that occurred for procedural reasons, is a compelling reason not to consider the explanation for delay as acceptable.
I take into account that Ms Nickel clearly sought to litigate the lawfulness of her dismissal by virtue of an in time first application. However for reasons stated it was not exceptional that Ms Nickel as an applicant whose application was dismissed at first instance did not exercise available rights to seek permission to appeal.
Considered overall, I do not find the circumstances exceptional.
I observe that had I concluded the circumstances to be exceptional, the public policy considerations in granting an extension for the late second application to proceed in circumstances where appeal rights under an identical first application had not been utilised or exhausted, would have weighed against the exercise of a discretion to extend time.
Disposition
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Nickel’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[22] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Ms M Nickel, with Mr J Norris, on her own behalf
Ms J Field, of and on behalf of Life Without Barriers LWB
Hearing details:
2023
Adelaide (by telephone)
24 May
[1] C2023/1524
[2] PR760899
[3] [2023] FWC 827
[4] C2023/2169
[5] [2023] FWC 630
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[15] Section 604 FW Act and rule 56(2) Fair Work Commission Rules 2013
[16] C2023/1771
[17] Discontinued by email 22 May 2023
[18] Section 577 FW Act
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[21] Submission (by email) 24 May 2023
[22] PR762623
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