Melody Anne Berden v Australian Indigenous Agribusiness Company Pty Ltd

[2018] FWC 7341

[2018] FWC 7341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Melody Anne Berden
v
Australian Indigenous Agribusiness Company Pty Ltd
(C2018/4894)

COMMISSIONER GREGORY MELBOURNE, 30 NOVEMBER 2018

Jurisdictional objection - application lodged outside the 21 day time limit.

Introduction

[1] Mrs Melody Berden and her partner, Mr Jeff Berden, were employed by the Indigenous Land Corporation (“the ILC”) to work at the Roebuck Plains Station near Broome in March of this year. They both lived onsite as part of this arrangement. Mrs Berden worked primarily as a cook, while Mr Berden was employed to carry out gardening and other duties.

[2] However, Mr Berden was dismissed from his employment on 21 June 2018, and on the following day he and Mrs Berden both packed their belongings and left the Station. On 3 September 2018 Mrs Berden made an application under s.365 of the Fair Work Act 2009 (Cth) (“the Act”) to have the Commission deal with a general protections dispute. However, the ILC subsequently raised a jurisdictional objection to the application claiming it was not lodged within the 21 day period provided for in s.366 of the Act. It also refused to participate in any conciliation proceedings until such time as the jurisdictional objection had been dealt with and resolved. This decision deals with that jurisdictional objection.

[3] The proceedings were conducted by telephone. Mrs Berden appeared on her own behalf. Mr Michael Kay from Wallmans Lawyers was given permission to appear under s.596(2)(a) as the matter involved a degree of complexity, given the jurisdictional objection, and his involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[4] Section 366(1)(a) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) sets out the matters that must be taken into account in this exercise of the Commission’s discretion. Section 366 states:

“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.”

[5] The Commission is accordingly now required to determine whether it is appropriate to exercise the discretion available to it to grant Mrs Berden additional time in which to make application.

The Evidence and Submissions

The Applicant’s Evidence and Submissions

Mrs Melody Anne Berden

[6] Mrs Berden and her partner were both employed in March of this year to work at the Roebuck Plains Station. Mrs Berden worked as a cook while her partner was employed to carry out gardening and other duties. They both lived onsite at Roebuck Plains as part of this arrangement. However, Mr Berden was dismissed from his employment by the Manager of the Station on 21 June 2018 and, as a consequence, was no longer entitled to remain on the Station. Mrs Berden and her partner then packed their belongings and left the Station on the following day.

[7] Mrs Berden had previously suffered an injury to her arm at work on 9 May 2018 and checked with the WorkCover authority before leaving the Roebuck Plains Station on 22 June 2018. She also attempted to speak with her Manager at the Station, Ms Kristy Geddes, on 21 June 2018, and sent her a text message on the following day stating, “We’re leaving now. Just letting you know we have left a couple of cupboards outside that will need to be brought in but too much for Jeff on his own.” 1 Ms Geddes responded by indicating, “Ok thanks Mel.”2

[8] Mrs Berden was also in contact with the HR Manager of the ILC, Mr Anthony Piantadosi, on 21 June 2018 to indicate that it was intended to pursue a complaint about the circumstances involved in Mr Berden’s dismissal. Mrs Berden continued to provide further details about a series of subsequent communications between herself and the ILC about these circumstances.

•  On 26 June 2018 Mr and Mrs Berden forwarded a letter of complaint to Mr Piantadosi concerning what was described as the wrongful dismissal of Mr Berden, and an allegation that the Managers of the Roebuck Plains Station had misled them about the arrangements that were to apply to their employment. The ILC acknowledged receipt of that complaint on the same day and indicated it would now investigate the complaint with an intention to complete the process as quickly as possible.

•  On 28 June 2018 Mrs Berden received an email from the ILC confirming that an investigation had begun and a response would be provided shortly.

•  On 13 July 2018 Mrs Berden sent an email to the ILC indicating that no communication had been received in the past two weeks and requesting an update on the steps taken to date to review and investigate the complaint.

•  On 17 July 2018 Mr Piantadosi sent an email to Mrs Berden apologising for the delay and advising that he had just returned from leave and would be in further contact on the following day with an update on the investigation.

•  On 20 July 2018 Mr Piantadosi sent a further email to Mrs Berden indicating that he had commenced reviewing the information and hoped to be in a position to complete the review and provide a response early in the following week.

•  On 25 July 2018 Mrs Berden sent a further email to Mr Piantadosi expressing her concern about the delay in dealing with the complaints and indicating that a resolution was sought by close of business on 27 July “…before we take the next step by presenting our case (including all prior information sent to your office together with this current email) to FairWork Australia.” 3

•  Mr Piantadosi then provided a response on behalf of the ILC in a letter dated Friday, 27 July 2018. It dealt primarily with the circumstances involving the termination of Mr Berden’s employment. However, it also made some reference to matters involving Mrs Berden, and included the following statement:

“We acknowledge that Jeff’s termination while lawful and legally separate and distinct from Melody’s employment which was not affected, may result in an unfavourable position from your perspective due to your relationship and living arrangements on the property. However, by your actions of leaving the property without discussion/agreement, we consider it Melody’s intention to terminate her employment on the basis of resignation effective from 22 June 2018.” 4

•  letter continued to state that the ILC would now advise its workers’ compensation insurer that Mrs Berden’s employment had ended by way of resignation.

•  On 1 August 2018 Mrs Berden sent an email to the ILC indicating that at no time had she offered her resignation and would only ever do so by providing appropriate written notification. She described the references to her in the ILC’s letter of 27 July 2018 as representing an attempt to intimidate her.

•  On 14 August 2018 Mrs Berden received correspondence from Wallman’s Lawyers, who indicated that they now acted for the ILC. The letter stated, in summary, that it was considered that she had voluntarily resigned by her actions and conduct in leaving the Station but, in any case, she had as a consequence of her actions breached the terms of her employment contract.

•  On 17 August 2018 Mrs Berden sent a further email to Wallman’s Lawyers responding to various issues raised in their earlier correspondence but also stating that, “Melody maintains she did not resign her position.” 5

•  Mrs Berden subsequently received a response on 20 August 2018 attaching certain documents that had been requested but also noting that, “I note you dispute the circumstances in which your employment terminated.” 6

•  Mrs Berden then proceeded to make the present application to the Fair Work Commission on 3 September 2018.

[9] Mrs Berden continued to state in her submission:

“Given the date of the forced resignation by the ILC was 22 June 2018 and Melody did not receive notification of this until 27 July 2018 there was no opportunity for Melody to lodge her claim with the 21day time period. The reason for the delay lies with the ILC who failed to notify Melody (of her forced resignation) within a timeframe that permitted her to exercise her Workplace Right to lodge a claim within 21days. This has prejudiced the case for Melody.” 7

[10] She also indicated during the proceedings that after leaving Roebuck Plains Station she and her partner travelled to Broome, and then to other locations looking for work until they eventually decided to return to their home in South Australia. Mrs Berden said she continued to be confused about the circumstances involved in her departure from the Roebuck Plains Station, and about her employment status, and she eventually sought legal advice from a community legal service sometime around the middle of August. It took time for this advice to be obtained due to the limited resources available at the legal service. However, after finally obtaining advice she proceeded to lodge this application on 3 September 2018.

The Respondent’s Submissions

[11] The ILC submits, in response, that Mrs Berden’s employment ceased on 22 June 2018 and her application was accordingly filed 73 days after that date, and was therefore lodged 52 days out of time.

[12] It also rejects the submission that Mrs Berden only became aware that her employment had come to an end on 27 July 2018 when she received the correspondence from the ILC. However, even if this submission is accepted then her application was still not filed until 37 days after that date, in circumstances where nothing prevented her from making application at an earlier point in time.

[13] The ILC continues to submit that Mrs Berden left her employment on 22 June 2018 with no obvious intention of returning, and at no time did she demonstrate or express any intention to return to her accommodation, or to her employment at the Roebuck Plains Station. She had therefore resigned without notice or, alternatively, abandoned her employment. Her resignation was accordingly accepted and the ILC considered that her employment ended on 22 June 2018.

[14] It continues to submit that she has provided no reasonable explanation for the delay in filing her application, and notes that as at 25 July 2018 she refers in her correspondence to the possibility of pursuing a claim in the Fair Work Commission, and was also aware at that time that her employment at the Roebuck Plains Station had come to an end.

[15] The ILC also acknowledges that she was subsequently in communication about a range of different matters, some of which concerned her partner. However, there was no clear action taken by her to actively dispute the ending of her employment until such time as she lodged the present application.

[16] It also denies that any adverse action was taken against Mrs Berden, and submits instead that she resigned from her employment in circumstances where this was not due to any action taken by the ILC. However, even if adverse action were to be established there is no evidence of any action having been taken for any unlawful reason. It also submits that this is not a case where the merits weigh in favour of the granting of an extension of time. It submits, in conclusion, that there are no exceptional circumstances existing to support an exercise of the Commission’s discretion to grant an extension of time for Mrs Berden to file her application.

Consideration

[17] The circumstances concerning the cessation of Mrs Berden’s employment at the Roebuck Plains Station were somewhat unusual. She and her partner were both employed and lived on the Station. After her partner was dismissed from his employment he needed to leave the Station to look for work elsewhere. Mrs Berden, who had previously sustained an injury to her arm, also packed her belongings and left the station at the same time, although she claims she did not resign from her employment at that time.

[18] However, the Commission is not now required to necessarily determine this issue at this time. It is instead required to consider whether it is appropriate to exercise the discretion available to it to extend time in which to make application, given that on any view both parties at least understood by 27 July 2018 that the ILC considered Mrs Berden had resigned from her employment, or had otherwise abandoned her employment. However, she did not proceed to make the present application until 3 September 2018, being well after the 21 day time period in which it is normally expected that an application will be made.

[19] In considering an application for an extension of time the Act makes clear that the Commission must have regard to each of the matters in s.366(2) in deciding whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time. Previous decisions have had regard to what is required to find that “exceptional circumstances” exist that might justify an extension of time.

[20] The Full Bench decision in Nulty v Blue Star Group (Nulty) 8 is often referred to in this context, and the principles established in the decision have been held to be of wider application. The relevant extracts from the Full Bench decision in the context of the present application are set out at [13] and [14] in the following terms:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 9

[21] The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They are also circumstances that are out of the ordinary course, unusual, special or uncommon, but need not be unique, unprecedented, or very rare. However, they are not circumstances that can be said to be regularly, routinely, or normally encountered. I now turn to deal with the circumstances involved in this matter, and the submissions of the parties, by reference to these authorities and the matters in s.366(2) that the Commission must have regard to.

(a) the reason for the delay

[22] Mrs Berden relies on various circumstances to explain the reason for the delay in lodging. Firstly, she submits that she did not at any time resign from her employment, and was unaware the ILC considered that her employment was at an end until she received the letter from Mr Piantadosi dated 27 July 2018. She also submits that she was confused at the time, and was involved in an ongoing process with the ILC in an endeavour to resolve the matter. She finally decided to seek legal advice, but this was made more difficult by the fact she was travelling in a relatively remote area and it was not easy to quickly access available community legal advice. However, after obtaining advice sometime during mid-August she subsequently proceeded to make the present application on 3 September 2018.

[23] The Commission is prepared to accept, without determining the matter definitively at this point, that up until 27 July 2018 Mrs Berden was genuinely uncertain about the status of her employment, and in her mind considered she was still employed by the ILC. However, at the same time there can be no doubt that once she received the letter from Mr Piantadosi on 27 July 2018 she must have been aware that the ILC considered she was no longer employed, having either resigned or abandoned her employment. In these circumstances it could be expected that she would have acted promptly at this point if she wanted to take issue with the suggestion she had resigned from her employment, or it had otherwise come to an end.

[24] It is acknowledged that given Mrs Berden was travelling in relatively remote parts of the country at the time that this might have made it more difficult for her to obtain advice or take issue with the ILC. However, at the same time nothing appears to have prevented her from being in regular contact with her former employer in order to try and ascertain or take issue with their position in regard to her employment status. In her correspondence dated 25 July 2018 she also made reference to the possibility of the matter being brought before the Fair Work Commission, so it appears she was at least aware at that time of the ability to make an application to the Commission.

[25] It is also acknowledged that community legal services have limited resources, and it can take time to obtain advice and assistance as a result. However, Mrs Berden did not make the present application until 3 September 2018, despite having been unequivocally informed on 27 July 2018 by her former employer that her employment was considered to be at an end. Despite this she still failed to make application within the following 21 day period. I am not satisfied that the evidence points to the existence of any “exceptional circumstances” that prevented her from doing so.

(b) any action taken by the person to dispute the dismissal

[26] It is accepted that Mrs Berden did a number of things after she and her partner left the Roebuck Plains Station on 22 June 2018. She initially appeared to be more concerned with what she considered to be the unfair dismissal of her partner, and there are various exchanges of correspondence about this. However, it is acknowledged that Mrs Berden subsequently took action to dispute the ending of her employment, particularly after she received the letter dated 27 June 2018. For example, she continued to maintain that she had not resigned from her employment, and later sought legal advice about the options that might be open to her before finally lodging the present application.

(c) prejudice to the employer (including prejudice caused by the delay)

[27] There will inevitably be some prejudice to an employer if an Applicant is given additional time in which to make application, given that the employer will then be required to do whatever it considers necessary to respond to the application. It is also noted that the delay in this case was not insignificant, given the application was not lodged until almost two and a half months after Mrs Berden last worked for the ILC.

(d) the merits of the application

[28] The relevance of the issue of “merit” in determining an application for an extension of time has been considered in previous Commission decisions, including in the Full Bench decision in Kyvelos v Champion Socks Pty Ltd (Kyvelos), 10 which was dealing with similar legislative provisions to those now contained in the Act. The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 11

[29] It concluded by stating:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 12

[30] As indicated, the decision makes clear that it is not necessary for the Commission to come to a concluded view about the respective merits of a matter when dealing with an application of this kind. However, I am satisfied that the issue of “merit” is of some significance in all the circumstances of this matter. As indicated, the ILC submits that Mrs Berden resigned from her employment, or otherwise abandoned her employment, by leaving her accommodation and place of work on 22 June 2018. An application under s.365 can only be pursued in circumstances where a person has been dismissed from their employment. In any consideration of the merits of the present application it is accordingly likely that Mrs Berden will therefore have to firstly establish that she was in fact dismissed and did not resign or otherwise abandon her employment.

(e) fairness as between the person and other persons in a like position

[31] This consideration does not seem to be of particular significance in all the circumstances of this matter.

Conclusion

[32] As indicated, in coming to a decision in this matter I have had regard to each of the considerations in s.366(2) that the Commission must have regard to in considering whether to exercise its discretion to grant additional time in which to make application. Mrs Berden clearly feels aggrieved about the circumstances involved in the termination of her partner’s employment. She also considers that they were both misled when taking on employment at the Roebuck Plains Station. It is also acknowledged that at the time her partner was dismissed he needed to leave the Station to look for work elsewhere. Mrs Berden considered that she had no option but to accompany her partner, given the injury she had sustained and her ongoing need for support in dealing with her day-to-day requirements. She also feels aggrieved about the way in which she was treated.

[33] It is also acknowledged that she was travelling in some relatively remote parts of the country at the time, and as a consequence was confronted with some additional difficulties in obtaining legal advice. She also claims to have not been aware of the relevant statutory timeframes, or the legal options that might have been available to her.

[34] However, many Applicants have difficulty in obtaining legal advice. Many also feel aggrieved, but have only a limited understanding of the avenues of redress that might be available to them, and the timeframes in which action needs to be taken. These are not unusual circumstances, but are circumstances that are instead commonly encountered. It also appears that nothing prevented Mrs Berden from being in regular contact with the ILC about her concerns after she left the Roebuck Plains Station.

[35] Mrs Berden also made reference in her correspondence to the ILC on 25 July 2018 about the possibility of taking action in the Fair Work Commission, and accordingly appears to have had some understanding about these options at this point. She also acknowledged that she did not obtain legal advice until sometime around the middle of August and then decided to act. However, for whatever reason she still did not lodge the present application until 3 September 2018, which was obviously by any standard well outside the normal 21 day period.

[36] I am not satisfied, in conclusion, that the factors that contributed to Mrs Berden’s application being lodged out of time can be said to constitute “exceptional circumstances” that would justify an exercise of the Commission’s discretion to extend time in which to make application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

M Berden on her own behalf.

M Kay, L Ritchie and A Piantadosi on behalf of the Respondent.

Hearing details:

2018.

By Telephone:

October 29.

Printed by authority of the Commonwealth Government Printer

<PR702795>

 1   Attachment to Applicant’s Form F8 Application.

 2   Ibid.

 3   Applicant’s Submissions, attachment D.

 4   Ibid, attachment E.

 5   Ibid, attachment H.

 6   Ibid.

 7   Applicant’s Submissions.

 8   [2011] FWAFB 975.

 9   Ibid, at [13]-[14].

 10   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421.

 11 Ibid, at [14].

 12   Ibid.