Ms Deborah Davie v North Queensland Primary Health Network

[2016] FWC 8979

[2016] FWC 8979

FAIR WORK COMMISSION

DECISION

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

Ms Deborah Davie
v
North Queensland Primary Health Network
(C2016/6429)

COMMISSIONER SAUNDERS NEWCASTLE, 19 DECEMBER 2016

Application to deal with contraventions involving dismissal – application to extend time refused

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Deborah Davie (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 12 December 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from Ms Carriann Shaw, Human Resources Manager.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[12] The applicant contends that she was dismissed on 6 October 2016.

[13] The respondent contends that the applicant was not, at any time, an employee of the respondent. It says the applicant was employed and placed by CBC Staff Selection to work for the respondent. The applicant’s work for the respondent ceased on 6 October 2016.

[14] The applicant agrees that she was not, at any time, employed by the respondent. She contends that she was offered employment by the respondent, but she did not take up that offer of employment because the respondent changed its position in relation to the ability of the applicant to work from home. Further, the applicant contends that the respondent instructed the employment agency through which she was engaged, CBC Staff Selection, to terminate her placement with the respondent with immediate effect on 6 October 2016.

[15] In the context of a s.365 application, the Commission does not have jurisdiction to determine whether the applicant was employed by the respondent or whether the applicant was dismissed from their employment. 12

[16] For the purposes of determining the applicant’s application for an extension of time pursuant to s.366(2) of the Act, I will use the applicant’s alleged date of dismissed of 6 October 2016 as the commencement of the 21 day period. On that footing, the 21 day time period for the applicant to make her general protections application expired on 27 October 2016. 13 Given that the applicant filed her Application on 28 October 2016, the Application was one day late.14

[17] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 27 October to 28 October 2016. However, the circumstances from the time of the dismissal (6 October 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[18] On 27 October 2016 at 6:13pm, the applicant sent an email to the Brisbane registry which read as follows:

“Good Afternoon

Attached is my form 8 regarding an matter with NQPHN – I will forward more information as I have it as I live in a remote location with poor access to internet.

Please confirm receipt.

Kind Regards

Deb Davie”

[19] The email to the Commission dated 27 October 2016 contained two attachments entitled:

1. “NQPHN – form 8.pages”; and

2. “waiver.pages”.

[20] The applicant emailed these attachments to the Commission on 27 October 2016 in a format known as “Pages”, which is a word processor for Apple Macintosh computers.

[21] On 28 October 2016, the Brisbane registry of the Commission was unable to open the attachments in the “Pages” format; it therefore sent the following email to the applicant at 9:45am on 28 October 2016:

“On 27 October 2016 the Fair Work Commission (the Commission) received the attached correspondence from you.

The material you have sent contains attachments in a format that is not supported by the Commission's information management systems or has security protections rendering it unable to be opened.

As the attachments cannot be opened they have not been taken to have been lodged.

If the attachments contain an application then this application has not been taken to have been lodged.

Should you wish to lodge an application you should urgently contact the Commission or provide a copy of the completed application form you wish to lodge in accordance with Rule 14.

Please be aware that some applications must be lodged within specific timeframes. Applications lodged outside of these timeframes may be dismissed.

To discuss this matter further you should contact the Commission on 1300 799 675 or reply directly to this email.

Rule 14 of the Fair Work Commission Rules 2013 outlines the requirements for lodging documents by email.

14 Lodging documents by email

(3) If a document is lodged by email:

(a) the document must be attached to the email:

(i) for a statutory declaration-as a PDF or other image format approved by the General Manager; and

(ii) for any other document-as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and

(iii) without any security restrictions

In addition to the above, any images should be provided in a commonly used format such as JPG, PDF or TIF.”

[22] The applicant sent a further email to the Brisbane registry of the Commission at 2:35pm on 28 October 2016 attaching her Application in PDF format. Because the Application complied with Rule 14, it was taken to have been lodged on 28 October 2016, one day outside of the time frame prescribed by s.366(1)(a) of the Act.

[23] The applicant explained her delay in making her Application in the following way in her written outline of argument:

“Unsure of the timing as dismissed at close end of business on the day [sic]. Therefore 1 day discrepancy. I also live in a remote location with little or no phone coverage and limited internet made getting advice difficult.”

[24] The applicant gave oral evidence to the effect that she knew there was a 21 day time frame in which she was required to lodge her Application because she saw this requirement on the Commission’s website. However, the applicant submits she was not sure of when the time period commenced. The applicant contends that it took some time to get all of her information together, which involved piecing together what had happened and looking at her situation. It also took the applicant some time to obtain legal advice which the applicant submits was difficult due to her rural location. Approximately 10 days prior to the end of the 21 day time period, on or around 17 October 2016, the applicant had a short conversation with the Working Women’s Centre to obtain some legal advice. However due to the applicant’s poor phone reception the conversation did not last very long. The applicant was advised by the Working Women’s Centre to file a form F8 application for general protections with the Commission.

[25] It was the applicant’s evidence that once she received the email from the Commission on 28 October 2016 advising her that the attachments she had sent on 27 October 2016 could not be opened, she had to drive away from her house until she was able to access fast internet as she lives in a rural area. As soon as she got the opportunity to do so, the applicant converted the attachments so they were no longer in the format of Mac “Pages” and instead transferred them to PDF format and emailed them back to the Commission later that day. The applicant acknowledged during her oral evidence that it was a mistake to lodge her Application in Mac “Pages” format, but she did not know about the requirements of Rule 14 at the time.

[26] In my view, the principal reason the applicant filed her Application one day late was because “Pages” is not an approved format under the Rules for documents lodged by email with the Commission and the applicant was not aware of that fact at the time she attempted to lodge her Application on 27 October 2016. But for the attachments to the applicant’s email of 27 October 2016 to the Commission being in the “Pages” format, the Application would have been filed within the time prescribed by s.366(1)(a) of the Act.

[27] I am satisfied that the principal reason for the one day delay in filing the Application was, to some extent, out of the ordinary course, unusual, special and uncommon. 15 This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[28] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 16

[29] The applicant concedes that she did not take any action to dispute her alleged dismissal, other than by making her Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[30] Prejudice to the employer will weigh against granting an extension of time. 17 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.18

[31] A long delay gives rise “to a general presumption of prejudice”. 19

[32] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 20 No such evidence was adduced by the respondent in this case.

[33] The period of the delay in this matter was one day. That is a short period of delay.

[34] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[35] The applicant contends the respondent breached s.340 of the Act. However, the applicant did not identify in her Application, outline of argument or witness statement the workplace right on which she relies or how the respondent, who she accepts was not at any time her employer, may have contravened s.340. The applicant’s former employer, CBC Staff Selection, is not a party to the Application.

[36] On a factual level, there is no dispute between the parties that the applicant was offered employment by the respondent but she did not take up that employment. The applicant says she did not do so because, according to her, the respondent reneged on an earlier agreement to allow her to work from home two days per week. The applicant believes she was misled by the respondent in relation to the opportunity to take up employment with the respondent and work from home for two days per week. She raised that issue with the respondent. The applicant also contends she relied on the misleading representation by the respondent to sign a lease and make other employment related decisions. The applicant submits the respondent’s decision to instruct CBC Staff Selection to terminate her placement on 6 October 2016 was unfair because, amongst other reasons, the termination was asserted to be on the basis of diminished performance in circumstances where the applicant says her performance was not diminished and no prior issue had been raised with her in relation to such an allegation.

[37] These facts may entitle the applicant to make a claim against the respondent for misleading and deceptive conduct or some other cause of action, but I do not see how the applicant could formulate an arguable case against the respondent under s.340 of the Act, whether as a prospective employee 21 or otherwise.

[38] In the circumstances of this case, I am satisfied that the merits of the applicant’s s.340 claim against the respondent are weak and this weighs against granting an extension of time.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[39] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 22 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[40] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[41] Having taken into account the matters referred to in paragraphs [12] to [40] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. Although the short delay and the reason for the delay weighs in favour of granting an extension, these matters are outweighed, in my view, by the weak merits of the case and, to a lesser extent, the fact that the applicant did not take action to dispute her dismissal. Overall, I am not satisfied the applicant’s circumstances are out of the ordinary course, or unusual, or special, or uncommon. Even if I had formed the view that there were exceptional circumstances, I would not have exercised my discretion to extend time in light of the weak merits of the s.340 case against the respondent.

[42] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms D Davie on her own behalf;

Ms C Shaw, Human Resources Manager for the respondent.

Hearing details:

2016.

Newcastle:

December, 12.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321

 13   That is, 21 days from 6 October 2016 (not including 6 October) is 27 October 2016.

 14   That is, 28 October 2016 is one day after 27 October 2016.

 15   Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]-[25] and the authorities cited therein

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 17   Ibid.

 18   Ibid.

 19   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 20   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 21   See s.342(1), item 2 of the Act

 22   [2016] FWCFB 6963

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