Maria Esguerra v Uniting Church in Australia Property Trust (Q) T/A UnitingCare Queensland
[2020] FWC 1935
•14 APRIL 2020
| [2020] FWC 1935 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Maria Esguerra
v
Uniting Church in Australia Property Trust (Q) T/A UnitingCare Queensland
(C2019/6612)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 14 APRIL 2020 |
Application to deal with contraventions involving dismissal - extension of time.
[1] This decision concerns an application by Ms Maria Esguerra under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] It is uncontested that Ms Esguerra’s employment ended on 19 September 2019. Her application was lodged on 28 October 2019. Accordingly, the period of 21 days for lodgement ended at midnight on 10 October 2019 and the application was therefore lodged 18 days out of time. Ms Esguerra seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.
[3] Upon application by the Respondent, confidentiality orders protecting the name and address of the client referred to in Ms Esguerra’s application were made on 17 March 2020. That client shall be referred to as “Client” in this decision.
[4] On 19 March 2020 I conducted the proceeding by way of telephone hearing. At the hearing Ms Esguerra appeared on her own behalf. In addition to herself, Ms Esguerra filed witness material from Mr and Mrs Banks, 1 the parents of Client (Parents), Ms Hendren2 and Ms Best.3 Only Ms Esguerra and Ms Hendren were required by the Respondent to attend the hearing for cross examination. Ms Lipsys, Senior Employee Relations Advisor, appeared on behalf of the Respondent.
[5] Ms Best’s evidence goes to what occurred after Ms Esguerra’s employment was terminated and her impressions of Ms Esguerra’s work. I do not consider these are relevant matters in the present application and accordingly, I have not had regard to Ms Best’s evidence.
Background
[6] Ms Esguerra is a Registered Psychologist and Behaviour Support Provisional Practitioner. 4 She commenced employment with the Respondent on 12 August 2019 in the position of Behaviour Support Practitioner (Psychologist) within the Respondent’s Allied Health Unit.5 In her role with the Respondent, Ms Esguerra was responsible for Client’s Behavioural Support.6 Client is a 40 year old man who has Down syndrome, intellectual impairment, early onset dementia, type 2 diabetes and multiple other health concerns. Client resides at a supported independent living residence with a disabled co-tenant.7 Client is a National Disability Insurance Scheme (NDIS) participant and receives support and services from the Respondent.8
[7] On 12 August 2019 Ms Esguerra and her line manager, Ms Pantoja, met with Parents. At the meeting, which went for approximately two- and one-half hours, 9 Ms Esguerra says that Parents raised a number of concerns regarding the Respondent’s treatment of Client10.
[8] Ms Esguerra was responsible for Client’s behaviour support.
Consideration
[9] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 11
[10] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 12 (Nulty) where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.13
[11] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Reason for the delay
[12] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 14 or a reasonable explanation.15 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd16 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.17 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.18
[13] In her materials and in her evidence at hearing Ms Esguerra says that the reasons for the delay in lodgement were manifold.
[14] Ms Esguerra says she decompressed with severe stress and anxiety and she was in shock and disbelief at her termination. 19 At hearing her evidence was that she was affronted, shocked and confused by her dismissal. She says she has consulted Dr Ishtiaq Rashid and Dr Leigh Cooper.20 She says she has consulted a psychologist and that her clinical supervisor, Ms Hendren, can attest to her mental state post termination.21 Ms Esguerra filed the following medical evidence:
• Queensland Worker’s Compensation Medical Certificate, dated 1 October 2019, signed by Dr Rashid, which provides that Ms Esguerra had no capacity for any type of work for the period 1 October 2019 - 15 October 2019 and refers her to Mr Olaf Handrick, Psychologist 22 (WorkCover Certificate);
• Progress Note from the Homeworld Helensvale Medical Centre, evidencing a consultation with Dr Copper on 21 September 2019, which provides that the reason for the consultation was “insomnia – anxiety related” and prescribes Temaze 23 (Progress Note).
[15] No medical evidence was filed by Ms Esguerra from Mr Handrick or any other treating psychologist.
[16] Ms Hendren’s evidence was that she is a colleague of Ms Esguerra and her clinical supervisor. 24 She says this role is to support and guide.25 Under cross examination Ms Hendren’s evidence was that her relationship with Ms Esguerra is a professional relationship and she has no personal relationship with Ms Esguerra. In her witness statement Ms Hendren’s evidence as to Ms Esguerra’s mental state after her dismissal is that she was “initially flummoxed …then distressed…then focused on achieving outcomes for her client …and then finally on herself, her health and her future in the profession.”26She also says that Ms Esguerra’s “anxiety and distress were at heightened levels and causing her difficulty and requiring supportive supervision and counselling.”27 At hearing Ms Hendren said that Ms Esguerra was very distressed and very confused after her dismissal.
[17] In her materials Ms Esguerra says she saw a lawyer within 21 days of her dismissal but did not make a claim due to “his exorbant [sic] fees and communication that it would cost $2,500 to make a claim and that the claim was circumstantial. I was not informed that I could make the claim myself and I was not in a sound mind to make any legal decisions.” 28 At the hearing Ms Esguerra’s evidence was that she obtained legal advice on 1 October 2019. At hearing she submitted that she was provided with “misinformation”, not only as to her ability to lodge a claim herself but also as to the burden of proof in general protections matters. As such, she submitted that representative error was made out.
[18] Ms Esguerra’s material discloses that on 23 September 2019 she attended the NDIS Quality and Safeguards Commission (NDIS Commission) to make a complaint and support Parents to make a complaint in relation to the care provided to Client by the Respondent. 29 On 10 October 2019 Ms Esguerra supported Mrs Banks at an appointment with Client’s psychiatrist.30 Later that same day, Ms Esguerra and Mrs Banks met with Ms Best at a café. Ms Esguerra says that Mrs Banks asked her to stay on as Client’s psychologist. She says Mrs Banks said words to the effect of “we didn’t know we had any rights until you came along”, to which Ms Esguerra responded with words to the effect of “I could assist you informally.”31
[19] Ms Esguerra says that between 8 October 2019 and 24 October 2019 she reviewed her notes regarding Client. She combined those notes into one document and made additional notes about certain events. She sent that file to the NDIS Commission at 9.14 pm on 24 October 2019. 32 On 29 November 2019 she met with an investigator from the NDIS Commission and made a witness statement.33 At hearing Ms Esguerra said that it took her more than a month of conversations with the NDIS Commission and eight weeks to finalise her complaint in relation to the Respondent’s treatment of Client. Ms Esguerra’s evidence both in her materials34 and at hearing was that she raised concerns with the Respondent regarding abuse and neglect of Client and the unauthorised use of restrictive practices during her employment. Her evidence at hearing was that she raised these concerns with the Respondent over the period of a month. In her materials she says that she was directed “over and over to upline” her concerns to managers who took no action.35 She says that due to the Respondent’s failure to act in relation to several reportable incidents in relation to Client she was required to make the complaint to the NDIS Commission personally. She says that obligation arose from her professional registration obligations and mandatory reporting obligations under NDIS legislation. She says that Client’s life was at risk and her duty of care required that she protect him. Her evidence was that her first and foremost duty was to Client and reporting concerns regarding his care to the NDIS Commission. She says this was a long and complex process. Ms Esguerra submits that this constitutes exceptional circumstances.
[20] Parents’ evidence is that they were increasingly dissatisfied with the Respondent’s care of their son and that they also had a number of concerns regarding his care.
[21] In her witness statement 36 Ms Hendren attests to the concerns Ms Esguerra had for Client, as conveyed to her by Ms Esguerra during supervision sessions. Under cross examination Ms Hendren agreed that she had not witnessed any of the alleged abuse and neglect of Client nor did she have, at that time, access to any of Client’s medical records or other confidential information.
[22] The Respondent submits that the Progress Note does not state that Ms Esguerra was incapacitated in any way. 37 It submits that the WorkCover Certificate does not indicate that Ms Esguerra was incapacitated for any activity other than “work”.38 Further it says that there is no medical evidence of any kind for the period 19 September 2019 – 30 September 2019.39 It submits that although Ms Hendren makes some observations as to Ms Esguerra’s presentations she is not providing this opinion as Ms Esguerra’s registered treating medical practitioner but, rather, in her capacity as a professional colleague providing supervision of Ms Esguerra’s professional activities. As such, it submits Ms Hendren’s evidence is not relevant.40
[23] As to the other reasons advanced by Ms Esguerra for the delay in lodgement, the Respondent submits that Ms Esguerra’s activities, including on 23 September 2019 in attending the NDIS Commission and on 10 October 2019 in attending the appointment to assist Mrs Banks at Client’s psychiatrist and in agreeing to informally act for Parents demonstrate that Ms Esguerra had medical capacity and was able to act for herself and others in matters of seriousness and complexity. 41 The Respondent submits that Ms Esguerra’s own evidence is that she was able to seek legal advice within the 21 day lodgement period and she was therefore not under any incapacity.42 As to Ms Esguerra’s submission that she “was not in sound mind to make legal decisions”, the Respondent submits that the material demonstrates that Ms Esguerra was able to, and in fact did, make serious and complex decisions.43 Finally, the Respondent’s submit that in accordance with the principles in Nulty, Ms Esguerra’s unawareness of her rights is not an exceptional circumstance.
[24] I accept that Ms Esguerra was distressed and anxious following her dismissal. However, this is both a common and understandable reaction. I accept the Respondent’s submissions that neither the Progress Note nor the WorkCover Certificate indicate in any way that Ms Esguerra was incapacitated such that she was prevented from lodging her application in time. As to Ms Hendren’s evidence regarding Ms Esguerra’s mental state, whilst Ms Hendren is a qualified psychologist it is clear from Ms Hendren’s material that she is not Ms Esguerra’s treating psychologist. Her relationship with Ms Esguerra is that of a colleague and supervisor. Ms Hendren confirmed under cross examination that this was the case. Accordingly, I give Ms Hendren’s evidence as to Ms Esguerra’s mental state after her dismissal little weight. In any event, in my view Ms Hendren’s evidence does no more than establish that Ms Esguerra was “flummoxed” and “distressed”. At its highest, her evidence is that Ms Esguerra was “very distressed” and “very confused”. In my view, it does not support a finding that Ms Esguerra’s mental state was such that she was unable to lodge her application in time or that exceptional circumstances exist on that basis.
[25] I also accept the Respondent’s submission that Ms Esguerra’s subsequent activities, including on 23 September 2019 and 10 October 2019 do not support a finding that she did not have sufficient capacity to lodge the application in time. If Ms Esguerra had sufficient capacity to attend the NDIS Commission, assist Parents to make a complaint and support Mrs Banks in an attendance at Client’s psychiatrist, it is difficult to see how she did not have capacity to lodge her application in time. In my view, that Ms Esguerra was not so incapacitated as to be unable to lodge her application in time is further supported by her evidence that she sought and obtained legal advice in relation to her dismissal on 1 October 2019. Again, if she has sufficient capacity to seek legal advice it is difficult to see how she did not have capacity to lodge her application in time. That she found the lawyer’s fees to be exorbitant does not constitute an exceptional circumstance. As to Ms Esguerra’s assertion that she was not advised that she could make the application herself or that the burden of proof in general protections matters rests with the employer, and that her case was circumstantial, there is no probative evidence as to the scope of the advice sought by Ms Esguerra from her legal advisers or the advice that was provided to her. Further, ignorance of one’s rights is not an exceptional circumstance. 44
[26] Accordingly, I do not consider that Ms Esguerra has provided a reasonable or acceptable explanation for the delay in lodgement due to her mental state post dismissal or arising from the legal advice she sought.
[27] Ms Esguerra says that she was obliged to report the matters of concern regarding Client’s care to the NDIS Commission as a result of her professional registration obligations and pursuant to NDIS legislation. She also says that Client’s life was at risk and her duty of care required that she protect him. Her evidence was that her first and foremost duty was to Client and reporting concerns regarding his care to the NDIS Commission.
[28] In her materials Ms Esguerra refers to making a “mandatory complaint in relation to abuse, neglect, unauthorised use of restrictive practise of a person with a disability.” 45 She also, at points, references the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Restrictive Practice Rules) and the NDIS Code of Conduct (Code of Conduct).46 However, none of the asserted professional registration obligations, the Restrictive Practice Rules nor the Code of Conduct were put into evidence.
[29] In her materials Ms Esguerra also refers to the following extract from the NDIS Practice Standards:
“The Commissioner is notified of all reportable incidents involving the use of unauthorised restrictive practice in accordance with the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018.” 47
[30] Both the NDIS Practice Standards and the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Rules)were in evidence before me, 48 however, Ms Esguerra made no specific submission as to these documents. In particular, she did not identify any section or specific provision of any particular document that she says required her to notify the NDIS Commission. If the inclusion of the above extract is intended to be a submission that such an obligation arose under the NDIS Practice Standards, that submission is rejected. Firstly, the NDIS Practice Standards provide that they “create a… benchmark for providers to assess their performance”49and “set out the rights of participants and the responsibilities of providers that deliver supports and services to them.”50 Accordingly, on their face, the NDIS Practice Standards, generally, appear to apply to NDIS providers, rather than the individual employees of providers. Secondly, the above provides that notification of reportable incidents is to be in accordance with theRules. Part 3 of the Rulesdeals with reportable incidents.For the most part, the obligations under Part 3, which includes a requirement that certain reportable incidents be notified to the NDIS Commissioner within 24 hours, also appears to apply to NDIS providers rather than individual employees. Exceptions to this are to be found in section 18 and 19 of the Rules. Section 19 requires an employee who becomes aware of a reportable incident to notify certain persons within the NDIS provider of that incident. Section 18 requires certain persons within the NDIS provider to take all reasonable steps to ensure that reportable incidents are notified to the NDIS Commissioner. Section 18 applies to “key personnel” of an NDIS provider and the person within the NDIS provider who is responsible for reporting reportable incidents to the NDIS Commissioner. Ms Esguerra did not advance any contention or evidence that she was a member of the Respondent’s key personnel as defined in section 18 of the Rules or that she was the person within the Respondent responsible for reporting reportable incidents to the NDIS Commissioner.
[31] Ms Hendren also gave evidence that under NDIS legislation a psychologist is obliged to act if they believe a person under a disability is at risk of abuse or neglect. However, Ms Hendren also did not identify where under NDIS legislation those obligations arose. Accordingly, whilst it may indeed be the case that there are professional registration obligations and NDIS legislative provisions which required Ms Esguerra to report her concerns to the NDIS Commission, there is no evidence of those obligations currently before the Commission.
[32] Ms Esguerra also says that Client’s life was at risk and her duty of care required that she protect him. Her evidence was that her first and foremost duty was to Client and reporting concerns regarding his care to the NDIS Commission. She says this was a long and complex process. Ms Hendren’s evidence at hearing was that a psychologist’s obligations to their client extends beyond any contractual arrangement insofar as their wellbeing is concerned. Her evidence at hearing was that she is now Client’s treating psychologist and as such, she now does have access to Client’s medical records and other confidential information. Her evidence is that in her engagement with Client, Parents and the Respondent there is, in her opinion, evidence that is highly suggestive of concerns regarding neglect and abuse.
[33] I accept that Ms Esguerra considered that Client had been subject to abuse and neglect, amongst other things. Ms Hendren’s evidence is that there is evidence that is highly suggestive of concerns of abuse and neglect of Client. The evidence of Parents is that they also held concerns regarding Client’s care. I accept that Ms Esguerra believed the complaint to the NDIS Commission was necessary to safeguard Client’s welfare. I also accept that that is a matter of considerable significance and import. Client is a vulnerable member of our community, reliant upon others to safeguard his wellbeing.
[34] Ms Esguerra’s evidence is that she was in discussions with the NDIS Commission for one month. I infer this to be the period 23 September 2019 until 24 October 2019. She says she reviewed her notes and added material to them from 8 October 2019 (19 days after her dismissal) until 24 October 2019. She provided her completed file to the NDIS Commission at 9.14 pm on 24 October 2019. She lodged her application in this Commission on 28 October 2019. After careful consideration, most particularly given the gravity of the matters Ms Esguerra says she raised with the NDIS Commission regarding Client, I am not satisfied that the making of the complaint to the NDIS Commission provides a reasonable or acceptable explanation for the delay in lodgement. Whilst the period of the delay to be considered is the period immediately after the time for lodgement until lodgement, in this case being the period from midnight on 10 October 2019 until 28 October 2019, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay. 51 While Ms Esguerra was preparing material for the NDIS Commission during much of the period from 10 October 2019 to 28 October 2019, she did not commence to do so until 19 days after her dismissal. During that 19 day period she was able to attend the NDIS Commission, meet with Dr Cooper and Dr Rashid, and seek and obtain legal advice. Further, following the submission of her material to the NDIS Commission Ms Esguerra did not lodge her application in this Commission as a matter of urgency. It took a further four days for her to do so.
[35] Accordingly, I do not consider Ms Esguerra has provided a reasonable or acceptable explanation for the delay in lodgement. This weighs against the granting of an extension of time.
Action taken by the person to dispute the dismissal
[36] It is uncontested that Ms Esguerra took no action to dispute her dismissal. This weighs against the granting of an extension of time.
Prejudice to the employer
[37] The Respondent submits that they are prejudiced as “so much time has passed” and this will present challenges for witness evidence. I reject that submission. I do not consider that a delay of 18 days will have any significant impact upon the ability of witnesses to recall relevant events and, as such, I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
[38] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[39] Ms Esguerra alleges that adverse action was taken against her in breach of section 340 and 343 of the Act. 52 However, there is a lack of clarity as to how Ms Esguerra puts her claim.
Section 340
[40] In her application, Ms Esguerra says that the contravention of section 340 relied upon is section 340(1)(b) of the Act. 53 That section provides that a person must not take adverse action against another person to prevent the exercise of a workplace right. ‘Adverse action’ is defined in section 342 and includes a dismissal. Section 341 provides that a person has a workplace right if, amongst other things, the person is entitled to the benefit of, or has a role or responsibility under, relevantly, a workplace law, or a workplace instrument or, if the person is an employee, is able to make a complaint or inquiry in relation to their employment. However, it is somewhat unclear from other material and submissions made by Ms Esguerra as to whether she relies solely on section 340(1)(b) or whether a contravention of section 340(1)(a) is also alleged.
[41] On 17 September 2019 Ms Esguerra sent an email to a number of management employees within the Respondent, raising “serious concerns” she had about the care of Client (Email). The Email included a recommendation that a report be made to the NDIS Commission. 54 She says that after sending the Email she was called into a meeting with Ms Pantoja and reprimanded for the manner in which she conducted a training session on 16 September 2019 at Client’s house. She says she was told that she had made staff cry, that she should not have told employees she was a psychologist, used a PowerPoint presentation or spoken about legal requirements as some employees had felt threatened (Meeting).55
[42] She says that she was absent from work on 18 September 2019 and that on 19 September 2019 she was called into a meeting and her employment was terminated effective immediately 56 for breach of the Respondent’s Code of Conduct.57
[43] The workplace right relied upon by Ms Esguerra is somewhat unclear. In her application Ms Esguerra says that she was terminated due to making a mandatory complaint in relation to abuse, neglect and use of unauthorised restrictive practices. 58 I note that the complaint made to the NDIS Commission was made after Ms Esguerra’s dismissal. However, she also says in her application that she was terminated for sending the Email.59 It is unclear as to whether the Email is asserted to be a complaint or inquiry for the purpose of section 341(1)(c)(ii) or is relied upon for the purposes of section 341(1)(c)(i) only. In her Outline of Argument, she says that she was terminated for informing staff and managers of the NDIS legislation and recommending a mandatory report be made to the NDIS Commission.60 It is unclear whether this is a reference to the training delivered on 16 September 2019 or the Email. At hearing when asked to clarify the workplace right that she relied upon she referred to the training of 16 September 2019 at which she informed employees of the obligations under the NDIS legislation and also the sending of the Email.
[44] The Respondent submitted at hearing that the workplace right sought to be relied upon by Ms Esguerra is not clearly articulated. I accept that submission. It submits that if the workplace right relied upon is the ability to make a complaint to the NDIS Commission, that is not a workplace law or workplace instrument for the purposes of section 341. However, the Respondent submits that irrespective of what the alleged workplace right is, Ms Esguerra’s employment was terminated because of her unsatisfactory conduct and performance. Specifically, it relies upon the termination letter provided to Ms Esguerra on 19 September 2019, which provides that:
“The performance displayed by you since your employment commenced on Monday 12 August 2019 and the incident that took place on Monday 16 September and Tuesday 17 September 2019, is less than that which is expected of you as a Behavioural Practitioner (Psychologist) and is in beach of the Uniting Care Code of Conduct.”
Section 343
[45] Section 343(1) provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person to, amongst other things, exercise or not exercise a workplace right.
[46] As I understand her materials, Ms Esguerra says that the action taken to coerce her not to exercise a workplace right was the Meeting. She says this occurred after she sent the Email and that in the Meeting she was personally attacked. 61 The workplace right relied upon appears to be the ability to complain to the NDIS Commission.62
[47] Ms Esguerra did not appear to press this ground at hearing nor did the Respondent make any oral submissions as to it. In its written materials the Respondent refute that Ms Esguerra was coerced not to make a complaint to the NDIS Commission. 63
[48] I consider there to be a considerable lack of clarity as to what contravention or contraventions of Part 3-1 are relied upon by Ms Esguerra and how she says they arise. There is a lack of clarity as to what the workplace right relied upon is and, if it is asserted to be the ability to make a complaint pursuant to section 341(1)(c)(1), what the workplace law or workplace instrument relied upon is. However, Ms Esguerra is unrepresented, and it may be that she is able to better articulate her claims with the assistance of Counsel. Given the interlocutory nature of this proceeding I am prepared to consider the merits of the matter as neutral.
Fairness as between the person and another person in a like position
[49] Applications to extend time generally turn on their own facts. Ms Esguerra submits that her position is considerably less fair than others in her position. She says that the Respondent had an obligation to notify the NDIS Commission of reportable incidents and because it would not do so, Ms Esguerra was required to do so. She says she is aware of peers who have identified to their employer that a mandatory complaint is required to be made to the NDIS Commission and they have been supported and assisted to make that complaint. She says she has been involved in many circumstances where concerns have been raised and she has never been treated as she was by the Respondent.
[50] Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.64 Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.65 As such, I am not assisted in my consideration of the fairness as between Ms Esguerra and others in a like position by the matters raised by Ms Esguerra in this regard. I consider this to be a neutral consideration in the present matter.
Conclusion
[51] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[52] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.
[53] Accordingly, I decline to grant an extension of time under section 366(2). Ms Esguerra’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
M Esguerra on her own behalf
M Lipsys for the Respondent
Hearing details:
2020.
Melbourne and Brisbane (by telephone):
19 March.
Final written submissions:
Applicant, 19 March 2020
Respondent, 28 February 2020
Printed by authority of the Commonwealth Government Printer
<PR718245>
1 Exhibit A11
2 Exhibit A12
3 Exhibit A10
4 Exhibit A5 at [4]
5 Ibid at [8]
6 Ibid at [17]
7 Exhibit A11 at [1]
8 Exhibit A5 at [15]
9 Ibid at [17]
10 Ibid at [16]
11 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
12 [2011] FWAFB 975
13 At [13]
14 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
15 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
16 [2018] FWCFB 901
17 Ibid at [39]
18 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
19 Exhibit A2 at question 1d
20 Ibid at question 1d
21 Exhibit A2 at question 1d
22 Exhibit A3
23 Exhibit A4
24 Exhibit A12 at [1]
25 Ibid at [10]
26 Ibid at [11]
27 Ibid at [7]
28 Exhibit A1 at question 1.4; Exhibit A2 at question 1d
29 Exhibit A5 at [140]
30 Ibid at [143]
31 Exhibit A5 at [144]
32 Ibid at [148-149]
33 Ibid at [150]
34 Exhibit A2 at question 1d
35 Exhibit A1 at question 3.3
36 Exhibit A12
37 Exhibit R2, Annexure A at [1.2.1]
38 Ibid, Annexure A at [1.2.3]
39 Ibid, Annexure A at [1.2.3]
40 Exhibit R3 at page 2
41 Exhibit R2, Annexure A at [1.2.2], [1.2.6], [1.2.7]
42 Ibid, Annexure A at [1.2.8]
43 Ibid, Annexure A at [1.2.8]
44 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
45 Exhibit A1 at question 3.1
46 Exhibit A2 at question 1h
47 Ibid at question 1h
48 Exhibit A6; Exhibit A7
49 Exhibit A7 at page 4
50 Ibid at page 5
51 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
52 Exhibit A1 at question 3.2
53 Ibid at question 3.3
54 Exhibit A8
55 Exhibit A1 at question 3.1; Exhibit A2 at question 1h
56 Exhibit A2 at question 1h
57 Exhibit A1 at question 3.1
58 Ibid at [3.1]
59 Ibid at [3.3]
60 Exhibit A2 at question 1h
61 Exhibit A1 at question 3.1, 3.3
62 Ibid at question 3.3
63 Exhibit R1 at question 5.1 at [6]
64 Wilson v Woolworths [2010] WA 2480 at [24 - 29]
65 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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5
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