Ms Janelle Durrant v Moreton Bay Regional Community Legal Service Incorporated

[2020] FWC 3624

[2020] FWC 3624

FAIR WORK COMMISSION

DECISION

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

Ms Janelle Durrant
v
Moreton Bay Regional Community Legal Service Incorporated
(C2019/6049)

DEPUTY PRESIDENT LAKE BRISBANE, 10 JULY 2020

Application to deal with a general protections dispute involving dismissal – extension of time– circumstances not exceptional – application dismissed.

Background

[1] This decision concerns an application by Janelle Durrant (Applicant) under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366 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 s 366(2).

[2] The Applicant alleged that her dismissal occurred on 19 August 2019. The Applicant had a series of casual employment engagements with the Respondent and there was some dispute about the nature of employment and whether there had in fact been a termination. However, independently, and as a preliminary bar to the matter proceeding, the out of time jurisdictional matter will be determined.

[3] The Applicant initially filed a Form F2 Unfair Dismissal application within the required time frame. On 1 October 2019, the Applicant discontinued the Unfair Dismissal and notified the Commission of a s 365 General Protections.

[4] Significantly, the s 365 application was therefore lodged 44 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondent opposes the granting of an extension of time.

[5] My Chambers issued directions for the parties to file outlines of submissions and any witness statement or other documents they sought to rely on prior to the hearing for an extension of time, which was listed for 22 March 2019.

[6] The Applicant asked for an extension to be granted – this request was granted. The hearing was then heard by telephone on the 20^th May 2020. The Applicant was not in attendance. Both parties were legally represented.

Consideration of whether a further period should be granted

[7] Under s 366 of the Act, a general protections application under s 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 3662(2) of the Act. Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for an application to be made:

(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.

[8] Satisfaction of ‘exceptional circumstances’ establishes a high bar for the Applicant. 1 The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.2 The Full Bench also stated 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.’3

Section 366(2)(a) - reason for the delay

[9] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench of the Commission 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, and that all of the circumstances must be considered.6 However, ‘mere ignorance is not a reasonable or sufficient explanation for delay.’7

[10] The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[11] The Applicantprovided an unsigned Statutory Declaration in which the reasons for the delay were distilled by her counsel as threefold: advice from the Registry office; strained financial circumstances and poor mental health.

[12] Taking these in turn, first, she claims that she had attempted to contact the registry between the dates of 19August 2019 and 6 September 2019 and alleges that she received no response from her calls and no return phone. Finally, on 6 September 2019 she did contact the registry and had a conversation with a person referred to as ‘Mitchell’. She alleges that through this conversation she was advised not to go with the unfair Dismissal claim and to discontinue the claim and make a new General Applications claim. She alleges that as a result of this conversation she filed a notice of discontinuance and then filed an F8 General Protections form on 1 October 2019 regarding that same matter, her alleged termination.

[13] The second reason the Applicant gave was that she had strained financial resources. In her unsigned statement she states that during the same conversation with ‘Mitchell’ on Friday 6 September 2019 that she stated to him that she could not afford to pay for another application. Therefore, in order to make a further application that she would have to wait for a refund of the first.

[14] Finally, she asserts that she had significant medical issues that had been exacerbated by as a result of the alleged termination. I note that she had experienced some delays in gaining the medical statements and in fact her treating professional had suddenly retired and so her GP provided a slightly more detailed medical statement. The medical statements assert that the Applicant had not been able to function to an optimal level since the alleged termination, and that she may have been impaired in her decision-making capacity.

[15] The Respondent drew the commission attention to the inconsistencies in the evidence that was presented. First, the Statutory Declaration was not in fact sworn and should be regarded as an unsigned document with little weight. Second, that the Applicant had legal training and was in fact a qualified solicitor. Third, that the medical certificate was provided by a General Practitioner, not a specialist and that there were two different medical certificates both dated on the same date and containing differences. The Respondent contended that because of the above the Commission should not put great weight on these reasons.

Conversation with the Registry

[16] The Applicant alleges that she had a conversation with the Commission on 6 September 2019 with ‘Mitchell’ and it was at this point she claims that she was advised that she should not proceed with an Unfair Dismissal application but rather file the General Protections application. However, the Commission file notes that the Unfair Dismissal was lodged that evening, at 8:46pm AEST, Friday 6 September 2019. As the Applicant had not yet filed any claim with the Commission prior to 8:46pm AEST on 6 September 2019, it does not seem likely that the Applicant would have been advised, by Mitchell or anyone else, to file an F50 Notice of Discontinuance and withdraw her claim. She had not filed any claim to withdraw. The Registry could not have given her advice to withdraw a claim not yet lodged and therefore any claim of the Applicant that she acted on purported legal advice of the Registry must be disregarded.

[17] I wish to make it abundantly clear that is the evidence put forward in the Applicant’s, albeit unsigned, statutory declaration. However, on review of the Commission’s file regarding the Applicant’s (now withdrawn) unfair dismissal, there is a file note of a conversation with the Applicant. On 19 September 2019, at roughly 2pm AEST, the Applicant dialled the helpline. The file note of the conversation is as follows (with abbreviations expanded):

[Telephone call] from [Applicant] in regards to their claim and asked if they could have their application changed to a [General Protections]. I replied no and explained why in great detail. I explained the [Out of Time] sections of the [Fair Work Act] 2009 and explained how the [Out of Time] process works in [General Protections].

[18] This file note was made contemporaneously with the Applicant’s phone call and therefore I believe that it is reliable and highly probative evidence. It is highly likely that the phone call regarding the switch from an Unfair Dismissal to a General Protections occurred on 19 September 2019 and not 6 September 2019, as put forward by the Applicant. I also find that the Registry staff member’s account of events, given its contemporaneous nature, is more reliable that the Applicant’s, who miscalculated the date by some 13 days.

[19] If the phone call had occurred on 6 September 2019, then the Registry staff member could not have advised the Applicant to withdraw a non-existent claim. If it occurred on 19 September 2019, then the account put forward by the Registry staff would not characterise advice to withdraw the Applicant’s Unfair Dismissal claim. He illustrates that he told the Applicant the application could not be switched and explained in great detail the process required to overcome an out of time application. While the Applicant contends that ‘it is not the point to say, as the respondent does, that it is not part of the registry’s function to provide legal advice’ it must be stated that the Registry makes it clear they cannot provide legal advice. 8 The Commission website clearly states:9

The Commission is a tribunal. To make sure it stays independent, Commission staff and Members cannot provide legal advice. This includes advice on whether you should make an application, which application is the best one for you or how to run your case.

[20] The Registry does not provide lawyers or legal advice. 10 The Registry does however provides a vital service to parties, helping to elucidate to them the various options available to navigate the Commission. While the Commission strives to be as accessible as possible to any applicant, without the service the Registry provides, the process would be far more confusing, especially for self-represented applicants, such as Ms Durrant. The Applicant in their own submissions states that ‘The Commission is a specialist tribunal with its own rules and procedures. It should not be assumed that merely because a person has a law degree that they are familiar with those rules and procedures.’11 This illustrates why the function of the Registry is vital in nature. From the file note it is clear that the Registry staff member did explain why the application could not be transferred and would have explained what process the Applicant would need to go through to proceed with a revised General Protections claim. If this was to be perceived as legal advice, then the Registry’s vital function would be frustrated and the effect upon the general community would be detrimental. Regardless of this, it is clear upon a summary of the facts before myself that the information provided could not be characterised as legal advice. The action taken by the Applicant was an informed one, but one undertaken of her own volition – the Registry merely informed her of the two options available. It is also worth noting that the Applicant delayed some 11 days between the phone call with the Registry and her withdrawal of the Unfair Dismissal application. While I do not factor this is my consideration, this would appear to indicate that the Applicant considered her options and acted of her own volition and did not blindly take the purported advice of the Registry staff.

[21] Ultimately, I prefer the account provided on the Commission file in the form of a contemporaneous file note over the account put forward by the Applicant in her unsworn affidavit. The conduct of the Registry does not weigh in favour of the Applicant’s claim for an extension.

Strained financial situation

[22] I do not consider this factor to weigh in favour of an extension. This is because the Commission has the capacity to waive any fees associated with an application through a Fee Waiver form. This is clearly indicated on the last page of the F2 Unfair Dismissal Application under the heading “Financial hardship”. If the Applicant’s finances were of genuine concern, then she could have applied through this process without any delay in lodging her claim.

[23] It is also noted that the Applicant did not select this and opted to pay by credit card, which indicates that she was capable of completing the transaction. Further, the F2 form does not require any financial information and can be submitted without payment being taken – a commission officer contacts the party within 3 days of the date of lodgement, as indicated on the form. I do not seek to make assumptions about the Applicant’s financial situation, so I do not take this second point as one of vital consideration. It is sufficient that the Commission provides an avenue to ameliorate any financial situation by way of a Fee Waiver and that the Applicant did not take advantage of this.

Medical condition

[24] I do not seek to explain in great detail the Applicant’s mental health. It is sufficient to say I agree with the submission of the Applicant that her mental condition weighs in favour of granting an extension. 12 However this factor alone, as contemplated by the Applicant, is not sufficient to explain the Applicant’s delay.13

Section 366(2)(b) - Action taken to dispute the dismissal

[25] The Applicant did lodge an Unfair Dismissal application within the time limit. Both parties acknowledged this as fact, however the Respondent contended that in the decision McConnell v A & PM Fornataro t/a Tony’s Plumbing Service [2011] FWAFB 466 (McConnell) the lodging of an Unfair Dismissal in time would only weigh as a neutral factor. A summary of this case is provided by the Respondent and is extracted below: 14

An applicant lodged an unfair dismissal application within the requisite period. Prior to the dismissal, the applicant had contacted the Fair Work Ombudsman who suggested that the applicant could file the unfair dismissal application. The unfair dismissal proceedings progressed to the point of an arbitration being listed, before the applicant obtained legal advice. Sometime later following the advice, the applicant submitted the general protections application. The applicant submitted that the delay was caused by his decision as informed by the Fair Work Ombudsman.

[26] The Applicant provided the following from the decision: 15 (footnotes omitted, emphasis of the Applicant)

It appears to me that in the course of these matters the applicant acted on a suggestion. As I said before, none of that suggested course of action had a directive connotation nor did it purport to be legal advice.

…

However, in this case I am not able to identify the same exceptional circumstances. As I said earlier, the reason for the delay in my view cannot be laid exclusively at the feet of the Fair Work Ombudsman. The Fair Work Ombudsman gave advice or suggested a course of action. It did not purport to give legal advice. Its action was not directive.

…

He didn’t direct you was your word — he didn’t tell you to do that? — No, he said that, you know, “If you feel you’ve been treated unfairly, you can” — but also he never mentioned that I could possibly have a general protections claim.

And he, from your statement, also said — apart from not directing you as such to make an application, he also said, from your evidence in para 13, that he wasn’t giving you legal advice. Is that right? — That’s correct, your Honour. I believe this, and accept that the Applicant took steps to contest his/her dismissal, aside from filing this application. This consideration weighs in favour of an extension of time.

[27] I have previously stated that I found the Registry staff did not give advice and therefore the conduct of the Registry is analogous to that of McConnell. The Registry does not purport to give legal advice – at its highest the information given was not directive, but informative. I weight this factor as neutral.

Section 366(2)(c) - Prejudice to the employer

[28] No submissions were led by either party and so this is weighted as neutral.

Section 366(2)(d) - Merits of the application

[29] Given that this is a matter where there is jurisdictional objection to be tested there was little evidence led regarding the merits of the matter. There are quite some matters in dispute on the facts of this matter and without all the relevant evidence being led and tested I am unable to make a determination on the merits. I weigh this as a neutral factor.

Section 366(2)(e) - Fairness as between the person and other persons in a similar position

[30] The respondent drew my attention to the fact that the applicant was a qualified lawyer and that I should take this into consideration. I have determined that I will consider this to be a neutral consideration in this matter.

Conclusion

[31] The time limit that applies to the exercise of a person’s right to bring an application under s 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.

[32] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from the Applicant having taken steps to contest the dismissal, none of the factors in s 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[33] I decline to grant an extension of time under s 366(2). The Applicant’s application under s 365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].

 2   Citing Baker v The Queen (2004) 223 CLR 513 at 573 and since cited with approval in Tamu v Australia for UNHCR [2019] FWCFB 2384.

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9] (Gostencnik DP).

 5   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16] (Hatcher VP).

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 7   Selic v Corporation of the Synod of the Diocese of Brisbane[2020] FWC 22, [26].

 8   Applicant’s submissions, [11].

 9   Fair Work Commission website:

 10   Athian v Barry Clayton[2017] FWC 2598, [14].

 11   Applicant’s submissions, [14].

 12   Applicant’s submissions, [18].

 13   Applicant’s submissions, [16].

 14   Respondent’s submissions, 3.2.

 15   McConnell v A & PM Fornataro t/a Tony’s Plumbing Service [2011] FWAFB 466, [14], [19] and [31].