Mrs Lorraine Adey v Ms Johan Roux

[2014] FWC 2720

[2014] FWC 2720 [Note: An appeal pursuant to s.604 (C2014/4824) was lodged against this decision - refer to Full Bench decision dated 3 September 2014 [[2014] FWCFB 6039] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mrs Lorraine Adey
v
Ms Johan Roux; Ms Eija Bunch; Christian Heritage College
(C2014/3344)

COMMISSIONER SIMPSON BRISBANE, 16 MAY 2014

Application to deal with contraventions involving dismissal - Out of time objection - Factors in s.366(2) considered - Not satisfied of exceptional circumstances - Application dismissed.

[1] An application under Section 365 of the Fair Work Act 2009 (“the Act”) was filed by Lorraine Adey (“the applicant”) on 6 March 2014. The application identified the first respondent to the application as the Christian Heritage College (“first respondent”), the second respondent as John Roux (“second respondent”) the Chief Executive Officer of the first respondent, and Eiji Bunch, the Director of Corporate Services of the first respondent as the third respondent (“the third respondent”).

[2] The applicant states that she commenced employment with the first respondent in February 2009 and was dismissed by the third respondent on 8 November 2013.

[3] Both the applicant and the first respondent addressed at some length the issue of whether the Fair Work Commission should extend time in the originating application and in the response filed. The applicant filed further material before a conference regarding the application, which was conducted on 24 April 2014.

[4] At the conference the respondents were represented by the Mr Brett Health of Carter Newell Lawyers. The respondents pressed the position that the objection be dealt with before conciliation. I granted representation to the respondents to be represented for the purposes of the jurisdictional objection on the basis that it would assist me in dealing with the matter more efficiently. I proceeded to hear further argument on the extension of time issue on the day of the conference from both the applicant and respondents given material was already before the Tribunal, and with the agreement of the parties determined to have regard to the written material filed and oral argument put on 24 April 2014 in determining the jurisdictional objection.

[5] The application included amongst other things that on 18 October 2013 the Applicant was offered a permanent position (she had initially been engaged as a casual working one day per week) of two days per week. The applicant said she ultimately decided to refuse the offer (on 8 November) as she had consistently worked more days as a casual, and had consistently requested more work days and had been refused, only being given extra days in the absence of another staff member.

[6] The applicant said that she had twice been overlooked for employment for the four day a week equivalent position of her own. The applicant maintained she had been singled out and given less favourable treatment than others over a period of time.

[7] The applicant maintained that she was discriminated against in obtaining extra work, and this was linked to bullying allegations made against the senior librarian. The applicant stated that she was offered the position (the 2 day permanent position) because another employee who had worked four days a week, requested a three day week in order that the employee could spend more time with her grandchildren.

[8] The applicant said that she was initially pleased and grateful about the offer as she felt she would be given recognition and progress she deserved. However, when she was given the offer of employment she was ‘devastated’ to find that she was being treated “unequally”.

[9] The applicant said she was unhappy because the job offer was for a twelve month contract, and that this was not consistent with the treatment of other employees. Further, the applicant said she discovered the role she was to be offered was at a lower level then the three day role to be filled by the other employee. The applicant stated that she was more qualified and longer serving then the employee who was to fill the three day a week role.

[10] The applicant also raised in the application a claim that following an investigation into bullying allegations made by another employee in the library in June 2013, she was asked to work full time to clear a backlog of work and during this time she was subjected to bullying, including by the second and third respondents. The applicant said she was issued a warning and she refused to sign it.

[11] The applicant said the offer of a permanent part time position would mean her pay would be lower than her existing position at the time, and the need to pay for childcare for the second day meant the applicant would receive little financial gain from the second day. The applicant said she suffered sleeplessness and anxiety attacks during the weeks following the job offer.

[12] The applicant claimed that on 7 November she was told she had to sign the contract offered or “there would be consequences”. The applicant claimed on the 8 November she was only told that she was a casual, and the employer could get rid of her at any time. The applicant claims as she refused to sign the contract she was dismissed on 8 November 2013.

Prior Dismissal Application

[13] The applicant said in her application in this matter that she had previously pursed the matter as an unfair dismissal application. The applicant stated she became aware in the course of conciliation before the Fair Work Commission on 17 February 2014 that the matter should have been brought as a General Protections claim.

[14] The applicant relies on the fact that when she filed a Form 50 (Notice of Discontinuance) for the Unfair Dismissal claim she advised the respondent she would be pursuing a General Protections claim.

[15] The applicant said that the Unfair Dismissal application was filed within time in November 2013, and conciliation did not occur until 17 February 2014, and that is the explanation for the delay in filing, at least for the period of time between the alleged dismissal on 8 November 2013 and the Unfair Dismissal conciliation conference on 17 February 2014.

Other reasons for delay

[16] Given that the General Protections application was not filed until 6 March 2014, other reasons given for delay by the applicant following 17 February 2014 were the time taken in getting legal advice on changing her application. The applicant said she did not get an appointment with a lawyer until 24 February 2014.

[17] The applicant also relied on the time taken to study the legislation and to compile her General Protections application, as she was unable to afford to engage a lawyer to prepare the claim.

Response

[18] The respondents in their Form 8A response denied the applicant had been dismissed from her position or at all. It was said the applicant had repeatedly requested additional hours and in or around October 2013, the first respondent conducted a restructure of its librarian’s roles and as a result of that decided to offer the applicant a permanent part time role two days a week.

[19] The respondents claimed that despite the applicant being aware that this meant the respondent would no longer be able to continue to offer a casual role, the applicant elected not to accept the respondents offer of a permanent part time position because she wished to retain the casual hourly rates. On this basis the respondents argue the applicant rejected an offer of ongoing employment and this amounted to a resignation from her position on 8 November 2013.

[20] In terms of each of the elements in section 366(2) of the Act the respondents submitted that the applicant had attempted to explain away the delay on the basis of being confused by the terminology “unfair dismissal” and “general protections dismissal”. The respondent said that the applicant had at all times during the advancement of her initial unfair dismissal claim, maintained that she had the benefit of legal advice.

[21] On the basis of the further material filed by the applicant on 23 April 2014 with the Commission and her submissions at the conference it is clear she did receive legal advice from a firm of solicitors prior to filing her Unfair Dismissal application. From the material filed it is clear the Solicitors were acting on the basis that they had been instructed to assist in the filing of an Unfair Dismissal claim. Whilst the applicant received some advice from solicitors the applicant prepared and filed the original application herself. The Unfair Dismissal application she filed included reference to provisions of the Act that are found in Chapter 3, Part 1 of the Act despite providing to the Commission a copy of an email she received from a solicitor providing advice that pertained only matter relevant to Chapter 3, Part 2 of the Act.

[22] It appears from the material provided and what was said by the applicant in the course of the conference that the inclusion of material in the Unfair Dismissal application making direct reference to a section of the legislation relevant to a General Protections claim was at her own initiative and not acting on advice from her solicitor.

[23] In the circumstances the respondents argue the situation is analogous to Anthony Mayall v French Island Ferries 1where no allegation was made by the applicant in that matter of representative error or of a mistaken intention on his part in initially making an unfair dismissal application instead of making a general protections application. Instead, the evidence was found in that case to be that the general protections application was made only after forming the view that the unfair dismissal matter was unlikely to be capable of proceeding.

[24] It would appear in this case the matter is less clear in that despite the applicant electing to file a Form 2 Unfair Dismissal application she included content in the form which indicates an intention to press arguments under Chapter 3, Part 1. There is material indicating the content of the Form 2 application created some initial uncertainty with the Fair Work Commission administrative staff as to the nature of the application.

[25] For reasons set out below ultimately my conclusions regarding the delay between Friday 29 November 2013 and Monday 17 February 2014 don’t affect my final decision in this matter, however it is arguable the reason for the delay between these dates could constitute exceptional circumstances in that the Form 2 filed did not represent the true nature of the application the applicant was making, despite the legal advice she received being confined to an Unfair Dismissal application, and not addressing a General Protections claim.

[26] There was no material and no submission that would satisfy me there was representative error in this case.

[27] To the extent that the applicant has sought to have regard to the content of discussions in the course of the conciliation conference in the Unfair Dismissal application I do not intend to have regard to those submissions as such discussions are conducted in private in accordance with the Act.

[28] The applicant has been unable to provide a satisfactory explanation for the delay between 17 February 2014 and 6 March 2014. It is her claim that it was following the conciliation conference on Monday 17 February that she became concerned that she should have filed a General Protections claim. On her submission she could not get an appointment to see a solicitor until a full week later on Monday 24 February 2014. Following that she withdrew the Unfair Dismissal application on Tuesday 25 February, but did not file the subsequent General Protections application until another 9 days later on 6 March 2014. There was no adequate explanation as to why it took 10 days after 24 February, and 9 days after 25 February when the first application was withdrawn, for this application to filed.

[29] In terms of s.366 (2)(b) it is acknowledged that the applicant disputed the dismissal within time as an Unfair Dismissal. The delay has caused some prejudice to the respondents in that that the reasons for the delay have caused at least the first respondent to incur unnecessary expense, including legal expense. I regard the merits of the matter as a neutral consideration and s.366 (2)(b) to have no particular bearing in this case.

[30] Having taken into account all of the matters in s.366(2) I am not satisfied there are exceptional circumstances justifying an extension of time in this case. On that basis application must be dismissed.

COMMISSIONER

 1   [2013] FWC 9880.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549970>