Ms Kathy Pope v Breakwater Island Limited T/A Jupiters Townsville

[2013] FWC 8056

[2013] FWC 8056

FAIR WORK COMMISSION

DECISION

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

Ms Kathy Pope
v
Breakwater Island Limited T/A Jupiters Townsville
(C2013/5533)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 OCTOBER 2013

Summary: extension of time - application 895 days late.

[1] On 12 August 2013, Ms Kathy Ann Pope (“the Applicant”) lodged an application for the Fair Work Commission to deal with a general protections dispute under s.365 of the Fair Work Act 2009 (“the Act”).

[2] The Applicant indicated in her application that her date of dismissal was “2009”. The Respondent, Breakwater Island Ltd t/a Jupiters Townsville, contended that the Applicant’s employment was terminated on 31 December 2010. The Respondent provided a copy of the letter of termination to that effect. The parties appeared not to be in contest that the dismissal took effect on 31 December 2010.

[3] In view of this, the application before me is some 895 days in excess of the 60 day statutory time period within which the Applicant ought to have made her application pursuant to s.366(1)(a) of the Act (as it then was). The Applicant was required under the Act to lodge her application by 1 March 2011.

[4] The Respondent subsequently agitated its concern is in this regard and sought that the Commission determine whether or not it would allow a further period within which the application could be made notwithstanding the statutory prescription that the application ordinarily ought to have been made within 60 days after the dismissal having taken effect.

Legislative provisions

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.

[5] The Applicant has been alerted to the Respondent’s concerns about compliance with s.366 of the Act since such time as the Respondent filed its response to the Applicant’s claims by way of its form F8A. The Applicant has also been provided a copy of the legislative provisions in question by chambers, as part of the directions process, and had acknowledged as such.

Consideration of the Applicant’s claims

[6] The Applicant in effect gives no evidentiary-based submission or argument in relation to why her application is late in relation to the requirements of s.366(2)(a) of the Act (as it was).

[7] The Applicant has provided a very significant volume of documentation about one or more workers compensation claims that she has made against the Respondent. She also included a number of extracts from the Workers Compensation and Rehabilitation Act 2003 (Qld).

[8] The Applicant intermittently made claim to having experienced a psychological injury, which was the basis for one claim under the Workers Compensation and Rehabilitation Act 2003 (Qld), but about this matter there was no detail. That is, the nature of the injury as alleged, and its duration and effects (such that it had bearing on the lateness of the application) were left unexplored at an evidentiary level.

[9] The Applicant also made allegations as to the manner in which she had been dealt with over time by her former employer and its and other legal representatives. But again, it was difficult to discern how these allegations operated in a material way to give context for failing to lodge an application in compliance with the Act.

[10] The Applicant was advised over the course of the directions process that the materials that she had submitted did not appear to be directly relevant to the requirements of s.366 of the Act. Her submissions in reply provided no further assistance either. It appears very much as if the Applicant sought to utilise this forum, to some measure, to seek the resolution of various issues arising in her workers compensation claims, and what she alleges was the conduct of the Respondent, amongst others therein.

[11] The conduct of the Applicant demonstrates that she is aware of statutory procedures and the regulatory structures. She has made workers compensation claims at an earlier time, as well as an application to the Anti-Discrimination Commission Queensland (“ADCQ”), raised a complaint with the Fair Work Ombudsman and filed an application for a dispute in the Australian Industrial Relations Commission (which was heard by me). The Applicant’s application to the ADCQ also reveals an understanding of the general protections jurisdiction under the Act.

[12] For purposes of s.366(2)(b) of the Act, there were no other steps taken by the Applicant to challenge or contest her dismissal, though she was provided extended advanced notice of the pending reasons for the dismissal. The Applicant claims to have always sought to challenge the Respondent’s decision to dismiss her, and may have utilised the workers compensation claims as an instrument to this end. But the Applicant was not able to take me to any evidence of having challenged the dismissal as such by other means, and in an express manner.

[13] For purposes of s.366(2)(c) of the Act, the Respondent argues that it is prejudiced by the application for reason that it is so far removed from the date of dismissal that its corporate structure has changed and the relevant staff have moved on and are no longer employed by the Respondent. As a result, the Respondent would be put to significant costs and time to identify the former staff who can assist in providing its defence to the claims. For example, one of those key staff presently resides in Dubai.

[14] These former employees may also have difficulty recollecting details of an event so far back in time. This is compounded by the fact that the Applicant did not challenge the dismissal and the former staff had no reason to investigate any allegations made by the Applicant at the time of the dismissal. This means there will be no investigation materials and the employees concerned would have no reason to retain any special knowledge about the circumstances. The evidence, in effect therefore, may well be stale.

[15] For purposes of s.366(2)(d) of the Act, the merits of the case have not been considered. They have not been considered as they are difficult to discern in any event, as the Applicant’s materials point obliquely to a Queensland statutory workers compensation-based complaint, and various interactions between the Respondent and the Applicant and their legal representatives, and between the Applicant and some of her legal representatives as well.

[16] The merits of the matter remain unexplored, and in circumstances where the Respondent has limited access to relevant personnel this is not surprising.

[17] This is a matter of neutral significance to my judgment, as a consequence.

[18] For purposes of s.366(2)(e) of the Act, no relevant circumstances have been alluded to by the parties either at the level of submission or evidence.

Conclusion

[19] Taking into account all the matters under subsection 366(2) of the Act, in my view there are no exceptional circumstances arising in this matter that would cause me to exercise my discretion to allow the application in a time period other than that stipulated at s.366(1)(a) of the Act. Even if I were to be wrong in respect of the requirements of s.366(2)(b) of the Act, the extent of the delay, the absence of any material basis to the explanation for the delay and the prejudice to the Respondent (on their own and taken together) make it impossible for the Applicant to meet the statutory precondition to the exercise of the Commission’s discretion at s.366(1)(b) of the Act.

[20] The application under s.365 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Pope, Applicant

Ms J. Ede, In-house General Counsel, for the Respondent

Hearing details:

By telephone

2013

15 October

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