Ms Gayle Tindal v Gertjan Reginald Eggers & Julie Ann Eggers T/A Aussie Yachting
[2018] FWC 7384
•20 DECEMBER 2018
| [2018] FWC 7384 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Gayle Tindal
v
Gertjan Reginald Eggers & Julie Ann Eggers T/A Aussie Yachting
(C2018/6210)
| COMMISSIONER SIMPSON | BRISBANE, 20 DECEMBER 2018 |
Application to deal with contraventions involving dismissal - extension of time – extension refused – application dismissed.
This application concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Ms Gayle Tindal who alleges her employment was terminated by Gertjan Reginald Eggers & Julie Ann Eggers T/A Aussie Yachting (Aussie Yachting/the Employer) in contravention of the general protections provisions of the Act. The Employer denied the allegations, and contends that Ms Tindal was dismissed for serious misconduct.
Ms Tindal stated in her application that she commenced employment with Aussie Yachting on 5 June 2018 and remained employed by them for approximately three and half months until her dismissal on 14 September 2018. It was not disputed by the Employer that Ms Tindal was terminated on 14 September 2018. Consequently, the last day in which the application could have been filed within time was Friday 5 October 2018. Ms Tindal’s general protections application was lodged on 5 November 2018, and was therefore made 31 days outside the 21 day period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).
The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.
Section 366 of the Act provides:
“Section 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.”
Background
On 5 November 2018 the Commission received a “Form F8 – General Protections Application” from Ms Tindal. Part 1.4 of the Application contains a question, ‘Are you making this application within 21 calendar days of your dismissal taking effect?’ Ms Tindal provided in her Form F8 that she did not lodge her application within the statutory time limit specified by the Act because of her fear of reprisal from her former employers. Specifically, Ms Tindal claimed to have been verbally and physically threatened by Mr Gertjan Reginald Eggers, one of the joint owners of Aussie Yachting along with his wife Mrs Julie Ann Eggers.
In her Form F8, Ms Tindal described the alleged threats made against her as follows:
"I was threatened by my former boss (Reg Eggers). He came to my home at 7:40am on the 14th of September. He was yelling, got right in my face, told me I was fired and alleged that I didn’t get injured on his boat. He threatened to smash up my possessions, at this point I became fearful of him and locked myself and my dog in my vehicle and informed him I was dialling 000 and he had better leave. I was so shocked at his actions and genuinely fearful of a further confrontation or attack from him. This resulted in me lodging a report with the police Ref No: QP1801663210.
It is for this reason that whilst I was still in Airlie Beach I did not feel at all safe filing this application, whilst there was still a very good chance that I could come into contact with either Reg or Julie Eggers in the small town of Airlie Beach. They are both very unstable individuals and I was genuinely concerned for my safety. Indeed I was informed by the police officer that it would be best that she does not speak to Reg regarding the incident, as it may inflame the situation. The police are familiar with these individuals and indeed, they have a reputation in the charter boat industry for being aggressive and volatile.
I have now left Queensland and am returning home to WA to have my back treated and get the support I need. I no longer feel in danger from these individuals and thus it is safe for me to submit this application at this point.”
On 15 November 2018, Aussie Yachting refused consent to conciliate the matter prior to the Commission’s determination of the extension of time issue. On 19 November the matter was allocated to my Chambers for determination of the extension of time issue.
On 23 November 2018 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing on 11 December 2018 to determine whether an extension of time should be granted. At the hearing, Ms Tindal was represented by Mr James Tregenza of QLD Law Group. Aussie Yachting was represented by Mrs Eggers and Ms Sarina Eggers-Stable of Sayad & Co. Legal who is the daughter of Mr and Mrs Eggers. Permission was granted for both parties to be represented. Ms Tindal participated by telephone from Western Australia.
At the commencement of the hearing I enquired whether either party wished to call evidence in relation to the application. Both parties advised they would reply only on submissions. On that basis no evidence was put before the Commission concerning the nature of the exchange was alleged to have occurred on the morning of the dismissal.
Submissions
On 3 December 2018, Aussie Yachting provided its Outline of Argument – Extension of time. The Employer submitted that there are no exceptional circumstances that would satisfy the Commission, pursuant to s.366(2), that an extension of time for the filing of Ms Tindal’s application should be granted.
On 4 December 2018, Ms Tindal provided an Outline of Argument – Extension of Time. Ms Tindal submitted that, pursuant to s.366(2), there exist exceptional circumstances that justify the Commission’s exercise of its discretion to extend the time for the filing of her application.
The test for whether there are ‘exceptional circumstances’ justifying the Commission’s exercise of its discretion to grant an extension of time, was outlined by the Full Bench in Nulty v Blue Star Group Pty Ltd.[1]
In Nulty a Full Bench of Fair Work Australia noted that “exceptional” circumstances must be out of the ordinary course, unusual, special or uncommon but need not be unique, unprecedented or very rare.[2] Though even where such circumstances are shown to exist, a discretion remains with the Commission to determine whether an extension should be granted.[3]
The ultimate conclusion as to whether there are exceptional circumstances turns on a consideration of all of the relevant matters including the reason for the delay and appropriate weight being given to each.[4]
Section 366(2)(a) – reason for the delay
Ms Tindal submitted that her fear of a violent confrontation with Mr and Mrs Eggers prompted her to delay the lodgement of her application until she felt it was safe to do so. At the time of her dismissal, both Ms Tindal and Mr and Mrs Eggers were residing in Airlie Beach in the State of Queensland. Ms Tindal submitted that Airlie Beach is a small community and that, consequently, she would find it difficult to avoid Mr and Mrs Eggers should they come looking for her.
Given her previous verbal altercation with Mr Eggers on 14 September 2018, during which Ms Tindal claims Mr Eggers became so aggressive that she felt it necessary to report his behaviour to the Police, Ms Tindal submitted in her Form F8 that she did not feel safe lodging an application with the Commission until she had left Airlie Beach. As evidence of the fact a Police Report was lodged against Mr Eggers Ms Tindal, in both her Form F8 and in her Outline of Argument submissions, cited the Report Number, 1801729172. She further claimed in her Outline of Argument submissions that the Police Report was filed with Senior Constable Sarah McElhinney of the Whitsunday Branch of the Queensland Police Service (QPS).
Mr Tregenza said there had been contact made with the Airlie Beach police station to obtained the correct QI number for the compliant Ms Tindal claimed to have made but could not produce documents for.
Ms Tindal further submitted that Mr and Mrs Eggers are known to have an aggressive and temperamental nature, hence she feared what their reaction would be if she lodged an application against their business with the Commission.
Ms Tindal submitted that she lodged her application as soon as she felt safe from Mr and Mrs Eggers, which for practical purposes was as soon as she left Airlie Beach to relocate back to Western Australia. Ms Tindal stated in her Outline of Argument that she could not leave Airlie Beach at any point prior to the date she lodged her application as her back injury would not allow her to operate a vehicle.
The Employer denied that the Mr and Mrs Eggers ever acted in an abusive manner towards Ms Tindal and rejected the claim that Mr Eggers was involved in the verbal altercation described by Ms Tindal in her Form F8. Further, the Employer rejected her submission that Mr and Mrs Eggers are prone to abusive and violent behaviour, stating that neither have a criminal record and that the Police Report cited by Ms Tindal does not reference either Mr Eggers or Mrs Eggers. The Employer submitted that their advice from the QPS was that if such a report was lodged, Mr Eggers would have been contacted by the QPS for a response. The Employer submitted that Mr Eggers denies having ever having been contacted by the QPS in relation to an altercation with Ms Tindal.
Ms Eggers said in oral submissions that her parents enquired with the local Police Station whether there had been any complaints under the police number Ms Tindal had provided with her application. They said they were advised by the Police there was no such complaint. Ms Eggers also said that a different number later supplied by Ms Tindal also did not conform with a complaint made to the Airlie Beach Police. Ms Eggers repeated the submission that no contact had been made by the police with Mr or Mrs Eggers about any alleged complaint. The Respondent said there was no evidence to support Ms Tindal’s main argument that she felt threatened, and no criminal history and no evidence of any history of violence on the part of Mr or Mrs Eggers. It was also said that after Ms Tindal sent her email of 21 September there is no evidence of Mr or Mrs Eggers attempting to contact her.
The Employer further submitted that Ms Tindal’s claim that she was fearful of a violent reprisal from Mrs Eggers is baseless as the two have seen each other since Ms Tindal’s dismissal, specifically at a Woolworths Supermarket in Airlie Beach on 4 October 2018, and no violent or abusive interaction occurred.
In the circumstances, the Employer submits that Ms Tindal’s claimed fear of reprisal from Mr and Mrs Eggers is not a sufficient reason for her delay in lodging her application.
On balance, I am not satisfied that Ms Tindal’s fear of reprisal from Mr and Mrs Eggers is a circumstance that is out of the ordinary course, unusual, special or uncommon.
I was provided with an email Ms Tindal sent to Mrs Eggers dated 21 September 2018, one week after her dismissal and whilst she was residing in Airlie Beach. The email is highly critical of Mr and Mrs Eggers, accusing them of conduct that was “absolutely reprehensible”, and that they should be “ashamed of themselves”. The email also accused them of conduct that is illegal, unethical; absolutely disgusting; accused them of having committed a crime and threatening Mr and Mrs Eggers that she will contact the police.
Ms Tindal goes on to say to Mr and Mrs Eggers;
“I hope you both take the time to reflect on what you have done and the implications that have resulted for all parties involved. I have already forgiven you, as there’s no benefit to me to carry the anger I felt towards you both any further.
I hope you can see fit to treat your employees much better in the future. I trust you will do the right thing and complete the relevant paperwork by the date above. I look forward to hearing from you forthwith.”
I accept that Ms Tindal may have had some fear of reprisal from Mr and Mrs Eggers, however, on the evidence presented I cannot accept that the threat posed by Mr and Mrs Eggers was sufficiently credible to justify the delay in lodging her application. The language Ms Tindal directed at Mr and Mrs Eggers in her email to them on 21 September is not indicative of her being so fearful of them that she was unable to file a general protections application. I am also not satisfied that, in the absence of any evidence of Ms Tindal’s actions between the date of her dismissal and the lodgement of her application, that taking no action in relation to her dismissal for 52 days was the only option available to her in the circumstances.
I am satisfied that it is appropriate to regard this consideration under s 266(2)(d) as weighing against the grant of an extension of time.
Section 366(2)(b) – any action taken by the person to dispute the dismissal
It was submitted for Ms Tindall that she submitted an email to the Respondent on 21 September raising concerns about how the dismissal occurred. This email raises a refusal on the part of Mr Eggers to sign off on seafaring hours for Ms Tindal, and as stated is highly critical of the nature of her dismissal.
The Employer submitted and Ms Tindal did not deny that she did not take any active steps to dispute her dismissal prior to the lodging of the present application. It is unclear, however, whether any opportunity was presented to her by the Employer to challenge the reasons for her dismissal, either in writing or verbally as part of a show cause process.
Ms Tindal has not brought any evidence, however, that she sought any advice in relation to her dismissal from the Commission, the Fair Work Ombudsman, a legal professional or a community legal centre.
On balance, I find that the Applicant did not take adequate and timely steps to pursue her dispute against the Employer. I am satisfied that it is appropriate to regard this consideration under s 266(2)(b) as weighing against the grant of an extension of time.
Section 366 (2)(c) - prejudice to the employer
Ms Tindal submitted that the delay in lodging her application has not prejudiced the Employer as they have actively tried to make it more difficult for her to lodge an application in relation to her dismissal with the Commission. Ms Tindal submits that the Employer’s decision to terminate her employment without providing notice of or any reasons for the dismissal, as well as the harassing and intimidating behaviour of Mr Eggers, have actively contributed to Ms Tindal’s delay in lodging her application.
In the circumstances, Ms Tindal submits that the relatively minor delay of 31 days has not caused any prejudice to the Employer.
The Employer submitted that they have suffered significant reputational and financial damage as a consequence of Ms Tindal’s actions in the workplace, her subsequent dismissal and her consequent application. The Employer submitted that this has been exacerbated by Ms Tindal’s lengthy delay in lodging her application.
The Employer submitted that the delay in the lodgement of the application has also caused the Employer to delay the sale of their business, which has had a deleterious effect on the owners of Aussie Yachting who are of an advanced age and suffer from health concerns.
On balance, given the Employer’s circumstances, I am not satisfied that the delay of 31 days has caused prejudice to the Employer. I am satisfied that it is appropriate to regard the consideration under s 266(2)(c) as not weighing against the grant of an extension of time.
Section 366 (2)(d) - the merits of the application
Ms Tindal submitted that she was dismissed either because she took sick leave on 10 September 2018 to recover from a back injury she sustained while working for the Employer on 5 September 2018, or because of the potential for the injury to cause Ms Tindal to take further time off work. It was submitted for Ms Tindal that she was injured on 5 September whilst lifting a mooring bouy with a boat hook and she took one day off. Ms Tindal claims she told Mrs Eggers on the afternoon before she was dismissed she had made a WorkCover claim.
Ms Tindal claims that Mr and Mrs Eggers told her they believed her claim to have been injured was a fraudulent attempt to either take extra days off work or to scam money from their business. Ms Tindal submitted that she has both a workplace right to take sick leave for a genuine health concern and a protection from being dismissed due to a temporary absence caused by a genuine injury. Ms Tindal further submitted that, pursuant to s.342 of the Act, her dismissal amounts to adverse action and that the causal connection between the exercise of her right and the adverse action taken is demonstrable by the timing and stated reasons for her termination.
Ms Tindal also submitted that the Employer was made aware that she had made a WorkCover claim.
In the circumstances, Ms Tindal claims it is clear that her dismissal was in contravention of the general protections provisions in Part 3-1 of the Act, specifically at s.341 and 352.
The Employer submitted that Ms Tindal’s dismissal was for serious misconduct relating to her fraudulent reporting in her Australian Maritime Safety Authority (AMSA) logbook. The Employer submitted that they dismissed Ms Tindal as soon as these incidents of fraudulent reporting were discovered and have reported Ms Tindal to AMSA for review. The Employer further submitted that Ms Tindal has not produced any evidence to demonstrate that she was an employee of Aussie Yachting and not an independent contractor engaged by them.
It was said by the Employer that on the day before her dismissal when Ms Tindal was asked to explain when and how she claimed to have injured herself she would not answer the question.
The Employer submitted the injury of Ms Tindal was a pre-existing injury and WorkCover payments were briefly made and have stopped. The Employer submitted they have also sought a review of the WorkCover claim because they maintain Ms Tindal was operating her own business, and was a contractor. The Employer submitted the alleged fraudulent entries being investigated by AMSA were serious misconduct warranting summary dismissal.
There are clearly several significant factual disputes in this matter that would need to be explored further before reaching a clear view on the prospects of the case. However, it is clear that Ms Tindal’s claim that she dismissed for a protected reason or because of the genuine exercise of a workplace right, are not without merit. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter/as weighing in favour of granting an extension of time.
Section 366 (2)(e) - fairness as between the person and other persons in a like position
The parties’ submissions on this point were not particularly useful in assisting the Commission’s determination on the relevancy of the factor in its consideration of whether to grant an extension of time. It does not appear, however, to be a relevant matter is this case. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter.
Conclusion
I have taken into account each of the matters that I am required to under s.366(2) and am satisfied that there are not exceptional circumstances justifying the extension of time and on that basis refuse the application. The application is dismissed.
COMMISSIONER
Appearances:
Mr J. Tregenza of Queensland Law group appearing for the Applicant.
Ms S. Eggers-Stable appearing for the Respondent.
Hearing details:
2018:
Brisbane,
11 December.
<PR702856>
[1] [2011] FWAFB 975.
[2] Ibid. at [17].
[3] Rodrigo v Mawland Quarantine Station Pty Ltd[2015] FWCFB 376 at [17].
[4] Stogiannidis v Victoria Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901 at para [38]
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