Ms Kay Meuleman v Moggill Primary P&C Association T/A Moggill Outside School Hours Care
[2014] FWC 8992
•12 DECEMBER 2014
| [2014] FWC 8992 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Ms Kay Meuleman
v
Moggill Primary P&C Association T/A Moggill Outside School Hours Care
(C2014/6260)
COMMISSIONER BOOTH | BRISBANE, 12 DECEMBER 2014 |
Application to deal with an unlawful termination dispute.
[1] This is an application brought by Ms Kay Meuleman for an extension of time to file an application to deal with a dispute under s 773 of the Fair Work Act 2009 (Cth) (the Act) relating to her dismissal from employment with Moggill Primary P & C Association T/A Moggill Outside School Hours Care (P&C).
[2] Section 774 (1) of the Act states that an application under s 773 must be made within 21 days after the employment was terminated or within such further period as the Commission allows under s 774(2) of the Act.
[3] As the applicant’s employment was terminated on 5 May 2014, this application was lodged on 8 September 2014, outside the 21 day time limit.
[4] Under s 774(2) the Commission may allow a further period if it is satisfied there are exceptional circumstances. The onus is on the applicant to establish that exceptional circumstances exist.
Background
[5] The applicant has lodged four applications since March 2014. The first two applications including an application for an order to stop bullying and a general protections application pre-date her termination. In addition she sought to amend the general protections application to a dismissal application and then, the applicant filed this application.
[6] The applicant was first represented by Legal Aid Queensland (LAQ). On 12 August 2014 LAQ became aware of a potential conflict of interest in representing the applicant, and arranged for the file to be given to different legal representatives. The reason for the conflict appears to be incorrect advice about the type of application that could be lodged.
[7] The applicant’s first application was an anti-bullying complaint. The respondent raised both substantive and jurisdictional objections to this application. One jurisdictional objection was that the P & C was not a ‘constitutionally covered business’.
[8] LAQ advised the applicant she could make a concurrent general protections application notwithstanding the objection. She then filed an application under s 372, alleging adverse action, namely being called on to “show cause”. She asserted this notice was the result of her lodging the bullying complaint.
[9] After she was dismissed, the applicant then sought to amend her application under s 372 to become a general protections termination application under s 365.
[10] The P&C objected to the amended application under s 365 on ‘substantially the same grounds’, asserting a jurisdictional issue arising from its status as a P&C Association.
[11] After she obtained new lawyers, the applicant was advised that she should make an application under s 773, and she sought to amend again so that the application was in effect brought under that section. The respondent objected to the amendment and a timetable was set to provide written objections.
[12] The applicant then withdrew her s 365 application and filed this present application under s 773.
[13] This decision deals with whether an extension of time should be granted so that the applicant can pursue the s 773 application.
[14] A short chronology appears in the following table.
25 March 2014 | Application lodged for an order to stop bullying: B2014/1139 |
24 April 2014 | Conference held at which respondent raised jurisdictional objection |
1 May 2014 | Applicant lodges a general protections application under s 372 |
5 May 2014 | Applicant’s employment is terminated |
22 May 2014 | Applicant forwarded to her solicitors an email received from the Respondent which included the “jurisdictional response.” |
10 July 2014 | My associate enquires by email whether the applicant sought to amend the application to a general protections involving dismissal under section 365 as the employment has now been terminated |
10 July 2014 | Respondent e-mails Fair Work Commission and the applicant as follows “We would ask that the applicant to put in a notice of discontinuance as the respondent is of the understanding that the Fair Work Commission does not have jurisdiction to hear the matter” |
18 July 2014 | Applicant solicitors advise that they have obtained instructions to amend the application |
11 August 2014 | Form F8A lodged by employer in response to the s 365 applicationobjecting to the jurisdiction of the tribunal because the worker is not working in a ‘constitutionally covered business’. The P&C resisted the amendment on the following grounds (among others): |
12August 2014 | Respondent provides applicant’s then lawyers LAQ with advice about the jurisdiction objection - LAQ ceases to act and refers file to new legal advisors |
8 September 2014 | Applicant discontinues section 365 application and filed a section 773 application to deal with unlawful termination dispute |
The law
[15] Section 723 prohibits a person from making an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. The effect of this is that if an applicant cannot make an application under section 365 then the Act provides that the Applicant can make an unlawful termination application under section 773. The time for making an application is provided for in s 774:
S 774 Time for application
(1) An application under section 773 must be made:
(a) within 21 days after the employment was terminated; 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 employee to dispute the termination; 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.
[16] As a result of these sections, the applicant cannot proceed unless the Commission allows a further period up to 8 September for the applicant to lodge her application. To do so, she must address the matters in s 774.
[17] Outlined below are the applicant’s and respondent’s submissions on the matters required to be taken into account when deciding if there are exceptional circumstances to allow a further period to lodge this application.
(a) The reason for the delay
The onus is on the applicant to explain her delay.
Applicant’s submissions
[18] The applicant submits there are 2 periods of delay, marked by the change in her legal representation.
[19] The first period of delay is from the date of dismissal until 12 August 2014. The applicant relies on representative error to explain this period, citing Clark v Ringwood Private Hospital 1and McConnell v A & pm Fornataro T/A Tony’s Plumbing Supplies.2
[20] On those authorities, late lodgement of an application due to representative error may be grounds for an extension of time. The tribunal should distinguish between a delay caused by the representative, where the applicant is blameless, and when the applicant has contributed to the delay. The actions of the applicant are the central consideration in deciding whether the explanation of representative error is acceptable.
[21] Where an application is delayed because the applicant has left the matter in the hands of a representative and has not followed up their claim, the extension may be refused. However, when an applicant has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.
[22] Lastly, a representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgement.
[23] The applicant submits as follows:
● she lodged her first application (for an order to stop bullying) on 25 March 2014 while still employed;
● on 30 April she was given legal advice that she could make a concurrent general protections application; 3
● on 1 May she was advised by her lawyers that she has a general protections claim and is eligible to make a complaint to the Fair Work Commission; 4
● On 19 May the applicant received a response to the anti-bullying application, which included submissions as to why the worker is not working in a constitutionally covered business. The applicant deposes to on-forwarding this material to the solicitors on 22 May;
● On 12 August the applicant’s solicitors became aware of the disputed jurisdiction and identified the potential conflict of interest and reallocated the matter out of the office of the Legal Aid.
Respondent’s Submissions
[24] The respondent submits as follows:
● the application was lodged more than 4 months after the dismissal;
● the Commission lacks jurisdiction to deal with the application unless an extension of time is granted within which to lodge the application;
● it first raised its jurisdictional objection on 11 April. That objection was discussed at a conference on 24 April and provided a detailed written response on 19 May including the jurisdictional objection;
● when the general protections application was lodged it raised the jurisdictional objection as follows:
○ On 10 July in an e-mail advised as “We would ask that the applicant to put in a notice of discontinuance as the Respondent is of the understanding that the Fair Work Commission does not have jurisdiction to hear the matter”
○ On 12 August the respondent provided material to LAQ disputing the jurisdiction of the Fair Work Commission.
Consideration of the first period of delay
[25] The respondent submits that at no time between 30 April 2014 and 12 August 2014 did the applicant provide a copy of the response in the anti-bullying matter to LAQ. However the supplementary material indicates otherwise and I am satisfied that the applicant provided this material to her advisers on 22 May, shortly after receiving the written materials.
[26] At no time between 22 May and 12 August did the legal representatives indicate that there was a jurisdictional issue that should be addressed by way of an alternative application. Rather, the legal advice was that a general protections application could be properly brought.
[27] I find in relation to the first period of delay that the applicant attempted to progress the matter in a timely way and the delay is properly apportioned to her representative.
The second period of delay - after 12 August until 8 September 2014
[28] The applicant must also explain her delay over the second period.
[29] The applicant changed solicitors on 12 August 2014 after LAQ realised it had a potential conflict of interest. It was over this second period that she discontinued her s 365 application and filed the present application, a matter raised by the applicant at the conference held on 25 August 2014.
[30] At that conference the P&C, as it was entitled to do, flagged that it would object to the application to amend. The respondent was entitled (as it did on numerous occasions) to ask the applicant to discontinue her applications.
[31] The applicant, through her new legal representatives submitted as follows with regard to the second period of delay:
“Her General Protections application had already once been amended by the Commission on its own initiative on 18 July 2014. Once the jurisdictional bar to her s 365 application was identified and accepted the applicant sought and received legal advice as to options. On the basis of that advice the applicant expeditiously made an application on 22 August to amend her section 365 application to section 773 application pursuant to section 586 of the Act. There is considerable overlap between s365 and s772 and general protections provisions of the Act in respect of dismissal. Apart from the jurisdictional basis the case to be met by the respondent is essentially identical.
[32] There were 2 options available to the applicant:
● apply to amend from a s 365 to a s 773 application; or
● withdraw the s 365 application and file under s 773 knowing the application was out of time.
[33] It seems to me that these circumstances of the applicant at this time fall squarely within Nulty v Blue Star Group Pty Ltd 5 where the Full Bench noted that exceptional circumstances, in its ordinary and natural meaning, 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.
[34] The factors that make it outside the ordinary course and very uncommon are that no party identified until after 12 August that the applicant had a potential claim under the Act. Her legal representatives lodged a claim that was not available to the applicant for reasons identified by the respondent.
[35] The respondent continued to request that the applicant discontinue her matter as the “respondent is of the understanding that the Fair Work Commission does not have jurisdiction to hear the matter.”
[36] But it was not the case that the applicant had no potential remedy and through this application has sought to now progress the application. In the hands of new representatives, it was identified that she might rely on s 723.
The explanatory memorandum explains that section as follows.
2702 … The unlawful termination provisions are only intended to be an extension of these provisions to persons who are not covered by general protections in relation to termination. The additional coverage in unlawful termination arises because these provisions rely on external affairs power, as they give effect or further effect, to be ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer...[my emphasis]
[37] This situation is out of the ordinary course and very uncommon, with a combination of the facts of the matter and untested law arising out of the exclusion of employees of certain entities from lodging a s365 application. These circumstances are not routine. They are not normally encountered.
[38] For these reasons I have concluded that the applicant has been able to explain her delay for the full period from dismissal until lodgement of the present application due to unusual and uncommon circumstances.
(b) Any action taken by the employee to dispute the termination
[39] It is clear that the applicant strongly disputed her termination. She commenced proceedings even before she was dismissed, exercising what she thought was her right, albeit under mistake occasioned by representative error. Taken in context it is clear that she disputed the dismissal at all times.
(c) Prejudice to the employer (including prejudice caused by the delay);
[40] The applicant submits there can be no prejudice because the case to be met by the respondent under the s 773 application is identical to that under the s 365 application. While there is no indication of prejudice to the employer, including that caused by the delay, its absence does not mean that it is automatic that the extension of time should be granted.
[41] In my view the applicant’s submission correctly reflects the similarities between the two applications and for this reason there is no demonstrable prejudice to the employer should the extension of time be granted.
(d) The merits of the application
[42] The respondent submits that there were strong grounds for termination related to the applicant’s conduct. 6 It was submitted that the reasons for termination given to the applicant were comprehensive and included a breach of trust and confidence.7
[43] The applicant submits that the reasons given for the dismissal are weak. Further she submits that the show cause notice was issued shortly after the conference before the Commission in the bullying complaint, and that this makes it at least arguable that one of the reasons she was dismissed was her making that application. 8
[44] I consider that the applicant has sufficient cause for this criterion to favour her, and in any case, one that includes a contest of facts is a matter properly determined at hearing. 9
(e) Fairness as between the person and other persons in a like position.
[45] This criterion is not relevant in these circumstances.
Conclusion
[46] I am satisfied that the applicant has demonstrated there were exceptional circumstances for not lodging her application within the statutory time allowed. I have taken into account the reasons for the delay, which in my view are unusual and uncommon. It is clear that the applicant did dispute her dismissal, and I find there is no prejudice to the employer. The merits of the application are sufficient that the matter should not be discontinued at this stage.
[47] I therefore extend the time for lodging a complaint to 8 September 2014
COMMISSIONER
1 (1997) 74 IR 413
2 (2011) IR 59, [35]
3 Affidavit of Robyn Patricia Wilkinson at para 11.
4 Ibid at paras 12 and 13.
5 [2011] FWAFB 975 at para 13.
6 respondent submissions at paragraph 22.
7 Ibid at para 20.
8 Applicant’s submissions at paras 45 and 46.
9 Kyvelos v Champion Socks Pty Ltd Print T2421; [2000] AIRC 540, [14]
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