Ms Brittany-Jaymes Samson-Anand Anbardan v Trimatic Contract Services Pty Ltd

[2012] FWA 3295

[2012] FWA 3295

FAIR WORK AUSTRALIA

DECISION

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

Ms Brittany-Jaymes Samson-Anand Anbardan
v
Trimatic Contract Services Pty Ltd
(C2012/3063)

VICE PRESIDENT WATSON SYDNEY, 20 APRIL 2012

General Protections dispute involving dismissal - Extension of time - Fair Work Act 2009 ss 365, 366.

Introduction

[1] This decision concerns an application lodged by Ms Brittany-Jaymes Samson-Anand Anbardan (Ms Anand) pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Anand alleged that her employment was terminated by Trimatic Contract Services Pty Ltd (Trimatic) in contravention of s.340 of the Act.

[2] Ms Anand asserted that she was dismissed on 5 April 2011. Her application was made on 12 March 2012 - 342 days after the date of dismissal. Trimatic contends that Ms Anand’s last day of engagement was 21 January 2011. Clearly, Ms Anand’s application was made well outside of the 60 days time limit prescribed by s.366(1) of the Act.

[3] In its preliminary material, Trimatic raised two jurisdictional objections to Ms Anand’s application. The first objection was that the application was lodged outside the 60 day time limit. The second objection was that Ms Anand was never employed by Trimatic. It contends that Ms Anand was engaged as a business sales contractor and her status was that of an independent contractor.

[4] The matter was listed for a telephone conciliation conference on 23 March 2012. Following this conference, directions were issued on the same day directing the parties to file submissions on the issue of an application for an extension of time.

Background

[5] Ms Anand was engaged by Trimatic as a business sales contractor on 23 November 2009.

[6] Ms Anand’s application contends that she was the subject of sustained sexual harassment, workplace bullying and unprofessional conduct by senior employees of Trimatic.

[7] On or around 21 January 2011, Ms Anand approached Trimatic’s State Manger in New South Wales, Mr Andrew Mault, and requested to take three months leave as a result of the alleged conduct. Ms Anand contends that a verbal agreement was entered into between herself and Mr Mault that she could take three months leave and then make contact with Trimatic after the three months had elapsed to return to work under the same contractual arrangement in place before any leave was taken.

[8] Trimatic contends that Mr Mault informed Ms Anand that she did not have to request leave because she was engaged as a contractor and that if she wished to be re-engaged in the future as a contractor she should contact him. Mr Mault explained that ultimately, re-engagement would depend on the commercial needs of Trimatic at that time.

[9] On or around April 2011, Ms Anand contacted Trimatic and requested a return to work. However she contends that no response was forthcoming. She further contends that around this time, she was informed by Trimatic that her contract with them had ended, effective from 5 April 2012 and that as she was engaged as an independent contractor, Trimatic was able to release her as it saw fit based on its commercial needs.

[10] Ms Anand submits that Trimatic breached s.340 of the Act, as adverse action was taken against her in the form of dismissing her from her employment or terminating her contract.

Statutory Framework

[11] Section 366 of the Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.”

Submissions of Ms Anand

[12] Ms Anand provided her written submission as to why she should be granted an extension of time for filing her application on 28 March 2012. She provided two grounds which she contends constituted exceptional circumstances.

[13] First, Ms Anand submitted that the failure of Trimatic to action her concerns about the alleged conduct raised in her application resulted in her acquiring a psychological injury which was not diagnosed until she had sought professional support. Due to this injury, Ms Anand contends that she had difficulty performing normal day to day functions and thus her ability to have the courage and mental state of mind to lodge an application was hindered.

[14] Secondly, Ms Anand submitted that she was delayed in making her application as she felt intimidated and overpowered by the employee who was the subject of her complaint. Ms Anand submits that if she formalised her complaint by making the application, she believed she would be harassed and intimidated into withdrawing the application.

[15] Along with her submissions, Ms Anand provided a statement from an employee of Trimatic , a witness statement from a former employee of Trimatic, a medical certificate and two letters from her clinical psychologist.

Submissions of Trimatic

[16] Trimatic filed a written submission in response to the application for an extension of time on 5 April 2012 and reiterated its initial response that, because the application was made outside of the 60 day time limit prescribed by the Act, Fair Work Australia has no jurisdiction to hear the application unless an extension of time is granted.

[17] In response to the first ground, Trimatic submitted that Ms Anand requested leave to undertake further study. It was not informed by Ms Anand or any other person about her sexual harassment complaint or her psychological injury prior to her last day of engagement with Trimatic.

[18] Trimatic submits that therefore Ms Anand’s psychological injury could not have been caused by the inaction of Trimatic if they were unaware of the complaint and injury prior to termination.

[19] Trimatic submitted that after the last day of engagement until around September 2011 it would often observe Ms Anand attend Friday night drinks with Trimatic employees and interact with the employee who is the subject of her complaint. It submits that this behaviour is inconsistent with the second ground.

[20] Trimatic submitted that the supporting material Ms Anand provided has little or no relevance to the application for an extension of time.

The Test

[21] Section 366 of the Act provides for an exercise of discretion to allow a further period for Ms Anand to make an application under s.365 of the Act. In exercising that discretion to grant an extension of time, Fair Work Australia must be satisfied on the material and evidence before it, that there are exceptional circumstances which contributed to the delay, taking into account the matters above.

[22] In Cheval Properties Pty Ltd v Smithers  1 a Full Bench considered the meaning of the expression “exceptional circumstances” in s.394(3) of the Act and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[23] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2) and thus for the purposes of s 366(2), “exceptional circumstances” should be given its ordinary meaning.

[24] A Full Bench in Nulty v Blue Star Group Pty Ltd  2considered the ordinary meaning of the term “exceptional circumstances” by noting how the phrase had been considered by the courts. The Full Bench applied the observations of Justice Rares at paragraphs [23] to [27] in Ho v Professional Services Review Committee No 295.3

[25] All of the circumstances need to be considered. There needs to be a single factor or combination of factors or events which when taken together produce a situation that is unusual, special, uncommon or out of the ordinary.

Are There Exceptional Circumstances?

[26] I must consider whether there are exceptional circumstances which would warrant an extension of time being granted to Ms Anand for the filing of her application. This involves the consideration of the following factors.

Reason for delay

[27] I am not satisfied that Ms Anand’s reasons for the delay in making her application are persuasive. Almost every application of this nature requires a decision to challenge an employer’s conduct alleged to be in breach of the Act. Such a step should not of course be taken lightly. Fear of a negative reaction of one sort or another is almost inevitable. The requirement for filing applications within the statutory time limit is set by parliament with full knowledge of the inherent reluctance of many applicants to make the serious allegations involved. I am not satisfied that Ms Anand’s circumstances are unusual or that she has established a justifiable reason for the extent of the delay.

Action to dispute the dismissal

[28] In an email dated 13 October 2011, Ms Anand wrote to Ms Allia, Senior Human Resource Consultant of Trimatic and made inquiries regarding a contractor termination checklist and confirmation of engagement letter, both dated 5 April 2011. These documents had been sent to her earlier that month. In particular Ms Anand corrected the spelling of her name and stated that she did not request to have her contract of employment with Trimatic terminated.

[29] On the evidence I find that Ms Anand took limited and delayed action regarding the termination of her contract. It did not amount to disputing the termination.

Prejudice to the employer

[30] Trimatic submitted it would be prejudiced if Ms Anand’s application for an extension of time was granted given the extent of the delay.

[31] Trimatic submits that the elapsed time of over 12 months is a significant delay and it is highly likely that the recollection of people connected to the material events would have diminished. It relied on the Full Bench decision in CEPU v Active Tree Services Pty Ltd  4, in which it was held that an application that was made over 12 months since the date of termination would prejudice the employer.

[32] In this case I consider that the significant delay involved could prejudice the employer.

Merits of the application

[33] Ms Anand does not appear to dispute Trimatic’s contention that she was engaged as an independent contractor. Further, Ms Anand submits that the adverse action taken against her was in the form of a dismissal after exercising her workplace right to take leave.

[34] Trimatic submits that it is not possible to “dismiss” Ms Anand and she was not entitled to take any leave, paid or otherwise as she was not an employee of Trimatic but an independent contractor. Trimatic submitted that the contract for services between itself and Ms Anand could be terminated by either party providing one day’s notice and the contract ended on 21 January 2011 when Ms Anand approached Mr Mault requesting “leave”.

[35] Putting aside the arguments about the status of the relationship, I am not aware how Ms Anand contends that the alleged termination occurred because of the perceived taking of leave. It may be that the parties were at cross purposes when discussing an absence from January 2011 and Trimatic may therefore have subconsciously taken adverse action because of the absence. Nevertheless, having considered the submissions of both parties and the context of the General Protections provisions of the Act, I am not satisfied that Ms Anand has a strong case or a reasonable prospect of success in a general protections court application.

Fairness between Persons in Like Positions

[36] In the case of Baker v Salva Resources Pty ltd  5the applicant was unable to establish “exceptional circumstances” after a 3 month delay in making an application due to a period of time in hospital for psychological illness.

[37] Trimatic contends that acquiring a psychological injury, 6 months after the engagement ended is therefore not sufficient enough to establish “exceptional circumstances” under s.366 of the Act.

[38] This factor does not assist Ms Anand.

Conclusion

[39] Having considered all of the circumstances and the matters specified in s.366(2) of the Act, I find that there are no exceptional circumstances in this case and an extension of time for filing of the application should not be granted. The application for an extension of time for making an application under s.365 is dismissed.

VICE PRESIDENT WATSON

Final written submissions:

Ms Samson-Anand Anbardan, 28 March 2012.

Trimatic Contract Services Pty Ltd, 5 April 2012.

 1   [2010] FWAFB 7251.

 2   [2011] FWAFB 975.

 3 [2007] FCA 388.

 4  [2011] FWAFB 8446.

 5   [2011] FWA 1289.

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