Mr Bronson Williams v The Corporation of the Synod of the Diocese of Brisbane
[2022] FWC 1296
•26 MAY 2022
| [2022] FWC 1296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mr Bronson Williams
v
The Corporation Of The Synod Of The Diocese Of Brisbane
(C2022/384)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 26 MAY 2022 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
This decision concerns an application by Mr Bronson Williams (Applicant 10) under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). 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).
Mr Robert Grealy of Australian Law Partners (ALP) has acted for Applicant 10 from at least 10 December 2021.[1]
Ms Phyllis Stovell (Applicant 1), Ms Krystal Kelly, Ms Siiri Lohmussaar, Ms Kaitlin Orringe, Ms Perise Ili, Ms Faith Monro, Ms Lisa Monro, Ms Jessica Watson and Ms Rachel Van Der Vorst (collectively, Applicants 1-9) have also made general protections applications against the Respondent and are also represented by Mr Grealy.
It is uncontested that Applicants 1-10 were dismissed on 15 December 2021.
A GP Application for Applicant 10 was lodged on 9 January 2022. The period of 21 days ended at midnight on 5 January 2022 and the GP Application was therefore lodged 4 days out of time. The Applicant seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent opposes the grant of an extension of time in respect of the application made by Applicant 10.
GP Applications for Applicants 1-9 were lodged on 7 January 2022. The period of 21 days ended at midnight on 5 January 2022 and the GP Applications were therefore lodged 2 days out of time. Applicants 1-9 seek that the Commission allow a further period of time for the GP Application to be made. The Respondent does not oppose the grant of an extension of time in respect of the applications made by Applicants 1-9.
On 7 April 2022 a mention was conducted by telephone where it was determined that:
· the above ten GP Applications would be heard together;
· any outline of argument, further submissions, witness statements and evidence (Materials) filed on behalf of Applicant 1 will be taken to be Materials filed on behalf of all of Applicants 1-9;
· any witness statements and evidence (Evidence) given or led on behalf of Applicant 1 will be taken to be Evidence given or led on behalf of all of Applicants 1-9; and
· separate Materials will be filed on behalf of Applicant 10.
On 26 April 2022 Applicants 1-10 filed an Outline of Submissions and a witness statement for Mr Grealy. Separate Materials were not filed for Applicant 10 as was directed nor were the Materials filed in accordance with the Directions nor served on the Respondent in accordance with the Directions. On 10 May 2022 the Respondent filed an Outline of Argument in relation to the application made by Applicant 10 and a submission not opposing the grant of an extension of time in relation to the applications made by Applicants 1-9.[2]
On 17 May 2022 a further mention was conducted by telephone. At that mention the Respondent confirmed that it did not require Mr Grealy for cross examination. Further, neither party sought to make oral submissions. On that basis and in the absence of any contest as to the facts, I determined that all 10 of the above applications would be determined on the papers. However, Applicant 10’s application would be subject to a separate decision.
Accordingly, this decision determines whether there are exceptional circumstances such that Applicant 10 ought be granted an extension of time for the lodging of his GP Application.
Background
As set out above, it is uncontested that Applicants 1-10 were dismissed on 15 December 2021. Mr Grealy’s evidence is that following their dismissal each of Applicants 1-10 instructed him to lodge a general protection claim involving dismissal.[3]
On 4 January 2022 ALP lodged a ‘joint’ single general protections application on behalf of Applicants 1-10.[4] Mr Grealy’s evidence is that he advised Applicants 1-10 that a joint application could be made to reduce the costs associated with lodging the applications.[5]
On 6 January 2022, following a telephone conversation with Ms Diamond, a law clerk engaged by ALP, the Commission wrote to ALP advising that a joint application on behalf of multiple applicants could not be accepted and that a separate application for each applicant was required.[6]
On 9 January 2022 ALP lodged Applicant 10’s GP Application.[7]
Consideration
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.[8]
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,[9] 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.[10]
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 delay
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[11] or a reasonable explanation.[12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[13] 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.[14] 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.[15]
Applicant 10 submits that the reason for the delay was that Mr Grealy mistakenly advised each of Applicants 1-10 that it was possible to lodge a joint application to reduce the costs associated with lodging a general protections application.[16] Accordingly, in summary, it is submitted that the reason for the delay was representative error. In the Outline of Argument filed on behalf of Applicants 1-10 it is submitted that ALP was not able to contact Applicant 10 immediately following advice from the Commission on 6 January 2022 that the joint application could not be accepted but lodged the GP Application for Applicant 10 as soon as contact was made.[17]
The Respondent submits that Applicant 10 has not adduced any evidence on this point and merely asserts that contact was unable to be made with Applicant 10 until 9 January 2022. The Respondent submits further that no details of the manner and occasions of attempts to contact Applicant 10 have been provided.[18] Finally, the Respondent submits that the conduct of the applicant is an essential consideration[19] and in the absence of any evidence to the contrary Applicant 10 cannot be said to be blameless in the delay.[20]
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[21] In Clark v Ringwood Private Hospital,[22] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
· depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;
· a distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;
· the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged;
· error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted;[23] and
· it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[24] However, as the Full Bench explained in Long v Keolis Downer,][25] ”an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.[26]
I accept the initial period of delay until 6 January 2022 was the result of representative error, being the incorrect advice given by Mr Grealy that a joint application in respect of Applicants 1-10 could be lodged. However, as submitted by the Respondent, there is no evidence to explain the further delay in filing between 6 January 2022 and 9 January 2022. Despite filing a witness statement in this matter Mr Grealy does not give any evidence to explain the delay between Ms Diamond being advised by the Commission on 6 January 2022 that the joint application could not be accepted and the filing of Applicant 10’s GP Application on 9 January 2022. An assertion in submissions that Applicant 10 could not be contacted is not evidence which explains the further period of delay. Further, Ms Diamond was not called to give evidence, nor was Applicant 10.
I reject the submission that in the absence of evidence to the contrary Applicant 10 cannot be said to be blameless. However, the delay from 6 January 2022 to 9 January 2022 was not the result of representative error and remains entirely unexplained by any evidence. Accordingly, I do not consider that Applicant 10 has provided a reasonable or acceptable explanation for the delay. This weighs against the grant of an extension to time.
Action taken by the person to dispute the dismissal
On 10 December 2021 ALP wrote to the Respondent on behalf of a number of the Respondent’s employees (Employees). In that correspondence ALP contended on behalf of the Employees, amongst other things, that the Queensland Chief Health Officers’ Direction, which, in summary, precluded the Employees from performing work at a workplace of the Respondent unless vaccinated against COVID-19 by a certain date (Direction), was unlawful, that the Employees had a religious exemption to the vaccines due to the means by which the vaccine was produced, several of the Employees had a medical exemption based on a family history or had medical conditions that put the Employees at a risk of complications from the vaccine, and raised issues in relation to contractual obligations and privacy (Letter). The Respondent replied to the Letter by letter dated 14 December 2021 (Response).[27] The Response concluded by saying:
“To be clear however, if by 15 December 2021, your clients have not met the vaccination mandate to the extent required under the Direction, it will be unlawful for them to attend the workplace and they must not attempt to attend their respective workplace”
Applicant 10 submits that in light of the above the Respondent “was well aware that the Applicants and each of them disputed their dismissal.”[28] I reject that submission.
Firstly, the Letter is dated 10 December 2021, five days before the employment of Applicant 10 was terminated. Accordingly, the letter cannot dispute the dismissal as it had not occurred. Secondly, the Letter in its terms does not dispute Applicant 10’s dismissal, rather it raises a range of reasons why it says that adherence to the Direction is not required or is unlawful.
I do not consider Applicant 10 took any action to dispute his dismissal prior to seeking to commence proceedings in the Commission. This weighs against the granting of an extension of time.
Prejudice to the employer
I am unable to identify any particular prejudice that would accrue to the Respondent 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
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.
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.
It is uncontested that the Respondent dismissed Applicant 10. Accordingly, adverse action in the form of dismissal was taken against Applicant 10. The Form F8 filed for Applicant 10 asserts that in terminating the Applicant’s employment the Respondent took adverse action against him in breach of section 351 of the Act. The ground of discrimination asserted is “medical condition”.[29] However, the response to question 3.1 of the Form F8 raises a number of other asserted breaches of Part 3-1 of the Act. In his written materials Applicant 10 refers to a statement of claim attached to Mr Grealy’s witness statement, which it is submitted “sets forth in better detail the bases of the Applicants applications.”[30] The statement of claim raises a large number of matters which appear to be superfluous to the question of whether in terminating the employment of Applicant 10 the Respondent took adverse action against him for a prohibited reason. I consider most of the grounds raised by Applicant 10 in the Form F8 and the statement of claim to have little or no merit. However, for present purposes I am prepared to consider this to be a neutral factor.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. 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.[31] 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.[32]
The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Applicants 1-9 and other persons in a similar position. In the present circumstances consider this to be a neutral consideration.
Conclusion
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.
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 in the particular circumstances of Applicant 10’s application.
Accordingly, I decline to grant an extension of time under section 366(2). Mr Williams’ application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Final written submissions:
Applicant: 26 April 2022
Respondent:7 May 2022
[1] Witness statement of Robert Grealy at [7]
[2] Respondent’s Outline of Submissions, Applicants 1-9 at [5]
[3] Ibid at [7]
[4] Ibid at [11]
[5] Ibid at [8]
[6] Ibid at [12], RG 4
[7] Ibid at [13], RG-4
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[9] [2011] FWAFB 975
[10] Ibid at [13]
[11] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[12] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[13] [2018] FWCFB 901
[14] Ibid at [39]
[15] 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]
[16] Applicants’ Outline of Argument at [2]
[17] Applicants’ Outline of Argument at [7]
[18] Respondent’s Outline of Argument at [15]
[19] Ibid at [17]
[20] Ibid at [19]
[21] See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109 as cited in [2020] FWC 3033.
[22] (1997) 74 IR 413 at 418-419.
[23] As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1
[24] QGS v Rogers at [17]
[25] [2018] FWCFB 4109 at [60]
[26] QGS v Rogers at [16]
[27] Witness statement of Robert Grealy at [5], RG-2
[28] Applicants Outline of Argument at [11]
[29] See Form F8, q.3.2
[30] Applicants Outline of Argument at [14]
[31] Wilson v Woolworths [2010] WA 2480 at [24-29]
[32] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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