Ms Margaret Bateman v Manpower Services (Australia) Pty Ltd

[2011] FWA 5116

[2011] FWA 5116

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Margaret Bateman
v
Manpower Services (Australia) Pty Ltd
(U2011/7931)

COMMISSIONER HAMPTON ADELAIDE, 15 AUGUST 2011

Application for unfair dismissal remedy - extension of time for lodgement - whether exceptional circumstances exist to warrant an extension.

BACKGROUND

[1] The matter arises in the context of an application made by Ms Margaret Bateman (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Manpower Services (Australia) Pty Ltd (Manpower or the respondent).

[2] The respondent is a labour hire company and Ms Bateman was employed in that capacity over a period of more than 10 years.

[3] There is a dispute as to whether the applicant was dismissed by the respondent and if so when that occurred. The applicant claims to have been dismissed on 29 April 2011 in the context of the respondent refusing to give her any further work upon the provision of a medical clearance. The unfair dismissal application was lodged with Fair Work Australia on 18 May 2011 and the applicant has sought an extension of time to permit the matter to be lodged beyond the 14-day period nominated by s.394(2) of the Act.

[4] The unfair dismissal matter has not been subject to conciliation and the respondent opposes the extension of time being granted. The file has been assigned to me to deal with the extension of time application.

[5] Given the relevant provisions of the Act, and the existence of significant factual disputes, I have now heard further from the parties and received evidence pertaining to the extension of time application. 1

[6] The applicant, who was not separately represented, contends that she approached Fair Work Australia in mid May 2011 when she was dismissed by the employer when it refused to offer her further work after recovering from a hip operation. The dismissal was said to have occurred on 29 April 2011 when a medical clearance was provided to the employer and no further work was then made available.

[7] The applicant also contends in effect that her medical condition is the reason for not being offered further work and that it was unfair that a person with her length of service could not take “sick leave” without jeopardising her employment.

[8] The applicant presented two statements 2 and gave evidence in the matter. Given her circumstances, I went to some lengths to ensure that she understood the nature of the application and the issues that would need to be considered, and facilitated the giving of evidence.3

[9] The respondent was represented by Ms Hunt, its in-house Solicitor - Workplace Relations and Corporate, and it contended that the applicant was not dismissed at any time by the employer, there was no satisfactory explanation provided for the delay in filing the application, and that the substantive application was without merit and should be dismissed.

THE STATUTORY CONTEXT

[10] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:

“….

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[11] Section 396 of the Act relevantly provides that Fair Work Australia must determine whether the application was made within the period required by s.394(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.

THE EVIDENCE AND GENERAL FACTS OF THE MATTER

[12] I found the applicant’s evidence to be unconvincing in a number of respects. I have made allowance for the fact that Ms Bateman is not a sophisticated woman and does not have a ready appreciation of her employment rights and associated matters. I do not consider that Ms Bateman sought to deliberately mislead the Tribunal, however, there are inconsistencies and gaps in her evidence that lead me to be cautious.

[13] The respondent led evidence from two witness as follows:

• Ms Lesley Thomas - Consultant with the respondent who had direct dealings with the applicant and the client business; and



• Mr Brain Lawler - Business Manager with the respondent who also had direct discussions with the applicant touching upon this matter.

[14] I found the two witnesses for the respondent to be reliable, open and genuine in their evidence. I accept that evidence where it conflicts with the applicant.

[15] Ms Bateman commenced employment with the respondent in 1999 and was assigned to work at the premises of the vegetable growing and packing property of one of the employer’s clients and in that capacity undertook the packaging of carrots. The applicant was paid as a casual employee and there was some significant fluctuation of hours and days worked, particularly on a seasonal basis.

[16] In mid January 2010, the applicant had a fall at the workplace and this resulted in a claim being made, and accepted, for medical and other payments under the relevant workers compensation scheme (WorkCover).

[17] The applicant returned to work shortly thereafter and undertook both ongoing physiotherapy and a graduated program which allowed her to sit down at work whenever she needed a rest. It is apparent on the evidence that there were no concerns about this claim or the return to full duties process from any of the participants including the applicant and the employer. The applicant returned to full duties (in the sense of no longer having designated sitting periods) by May 2010.

[18] Ms Batmen was apparently still experiencing ongoing discomfort and in due course was advised to have a hip operation that was originally scheduled to take place in early February 2011. The applicant kept the respondent informed of these developments and in late October 2010, she had two discussions with Ms Thomas about the matter.

[19] On 28 October 2010, Ms Bateman advised Ms Thomas that she was now booked in to have a hip operation, that her leg was still sore from her fall at work and that her Doctor was not going to put the claim through WorkCover. Ms Thomas empathised with the applicant and mentioned that she may need to look into sickness benefits with Centrelink. A subsequent meeting was then arranged.

[20] On 30 October 2010, during a meeting conducted at the workplace, Ms Bateman again confirmed her concerns about lack of income that would take place as a result of her impending hip operation. Ms Thomas then indicated words to the following effect:

“We are able to provide you with a separation certificate when you know the date of your operation and then you will be able to get sickness benefits from Centrelink. I am not sure of the exact process for claiming these benefits, as I have mentioned before, you will need to speak to Centrelink about it. If we give you a separation certificate, it will end your casual employment with Manpower working at (the client). Once you have recovered and have a full clearance for work, let me know and we will see if we can find any suitable work for you at (the client) if possible or somewhere else - it will depend on what we have available at the time. 4”

[21] It is clear that Ms Thomas emphasised the importance of Ms Bateman getting advice from Centrelink on these matters and that the separation certificate would indicate that her employment had ended. Ms Thomas also indicated that once the applicant was fit, she could again contact Manpower who would then seek to place her in some work. It is also evident to me that Ms Thomas did not get involved in any discussions concerning the merit or otherwise of the applicant’s WorkCover claim.

[22] There were no further discussions on the subject between the applicant and Ms Thomas prior to the applicant having the hip operation.

[23] On 10 January 2011, the applicant met with Mr Lawler. Ms Bateman raised her concerns about the fact that her impending operation was not apparently being covered by WorkCover and Mr Lawler explained that the relevant claims manager (Employers Mutual Limited - “EML”) had made the earlier claim “inactive”. Mr Lawler then advised the applicant that should she wish to reactive that claim, she would need to contact EML and supply them with further documentation. I interpose that it appears that EML had taken the view that the earlier injuries were superficial and that any ongoing problems were degenerative.

[24] The applicant again explained her concerns about the apparent lack of income to support her during her recovery and that she did not know whether she would ever fully recover. It is also likely that the applicant indicated that she may not necessarily return to work with Manpower after the operation. Mr Lawler explained that the nature of casual employment was such that she was paid a loading in lieu of annual and sick leave and accordingly did not have any sick leave entitlement. Ms Bateman then requested that the employer provide her with an employment separation certificate dated from her anticipated last day or work (18 January 2011) and the full pay out of the remainder of her long service leave (LSL). It is evident that the applicant sought the certificate in order to approach Centrelink for some sickness benefits but had little understanding of the other consequences of that request. It is also clear however that Ms Thomas had earlier attempted to explain those consequences to her and that none of these elements or implications were raised with or discussed by Mr Lawler.

[25] Mr Lawler made arrangements with Ms Thomas for a separation certificate to be forwarded to the applicant, along with the outstanding LSL. Although the applicant denied ever receiving an employment separation certificate and the employer was unable to produce a copy, I find that Manpower did send such a certificate to Ms Bateman and that this was the form later provided by her to Centrelink. 5

[26] It is likely that the applicant lodged a further WorkCover form with EML on 13 January 2011. 6 It is also likely that around this time the applicant approached her local Member of Parliament seeking some assistance in relation to her WorkCover concerns.

[27] The applicant’s last day of work was 18 January 2011 and she had the hip operation on the following day.

[28] Some three weeks after the operation (mid February 2011), Ms Bateman approached Centrelink with the paperwork provided by the respondent. As outlined earlier, I find that this was an employment separation certificate. During the course of that meeting, Centrelink contacted Manpower and the applicant was advised that the employer did not consider the applicant was still employed. I add that it is likely that this clarity was required as the manner in which the form was completed (in relation to the reason for cessation) by Ms Thomas may not have made that clear.

[29] It is clear on the applicant’s own evidence that by mid February 2011 Ms Bateman considered that she may have been dismissed and that it was unfair. 7

[30] On 15 March 2011, Ms Bateman contacted Ms Thomas and advised that she expected to have a medical clearance in due course. Ms Thomas advised that unfortunately, there were no casual positions or work at the moment with the client property and she would be advised if anything came up. There were no further approaches made to Ms Thomas by the applicant.

[31] The applicant also contacted Mr Lawler on 15 March 2011 and after speaking to the client business, Mr Lawler indicated that as a result of the weather conditions there was reduced picking and packing and Manpower would not be in a position to reemploy Ms Bateman any time soon. Ms Lawler also indicated that they would have difficulty finding other casual work next month but would contact her if any suitable work became available. Ms Bateman expressed her concerns about this development and the need for her to get work.

[32] I add that Ms Bateman does accept the weather would have significantly impacted on the extent of work that would have been available but considers that her medical condition or other factors were part of the reason for her non employment.

[33] Ms Bateman approached a well known legal firm dealing with employment and WorkCover matters in March 2011. A letter was forwarded to EML on the applicant’s behalf on 16 March 2011 seeking the determination of the WorkCover claim. Although the applicant apparently advised the solicitors about the status of employment with the respondent, and received some advice in that context, 8 Ms Bateman did not instruct that firm to take any action in that regard. I infer from Ms Bateman’s evidence that the costs of using the solicitors generally was considered to be prohibitive. It is clear that the applicant took no further steps to pursue what she already considered was an unfair dismissal until she later took some advice from a friend.9

[34] In mid to late April, Ms Bateman again approached Mr Lawler and the conversation proceeded along the lines of that which took place on 15 March 2011.

[35] Ms Bateman received a medical clearance on 29 April 2011 and went to the client property and made arrangements for the clearance to be forwarded through to Manpower. The applicant had a discussion with one of the managers of the client and formed the view that there was no work at present because of the weather and that Manpower did not want her to return in any event. I am not prepared to place any weight on that impression given the state and nature of the evidence.

[36] At some stage in early May 2011, Ms Bateman received some advice from a family friend that she could approach Fair Work Australia regarding her alleged dismissal.

[37] On or about 15 May 2011, the applicant wrote a letter to the Tribunal regarding her circumstances and also sent a completed form F2 application for unfair dismissal remedy. This application was received by Fair Work Australia on 18 May 2011 and this is the relevant date for present purposes. That application set out both Manpower and the client property as the respondents. In response to the request for some clarification as to the two respondents, Ms Bateman sent in a revised Form F2 naming only Manpower as the respondent and this was received by Fair Work Australia on 20 May 2011.

[38] It is against this background that I have assessed the various considerations cited by the Act.

CONSIDERATION

[39] Section 394(2) of the Act provides a 14-day period within which to lodge an unfair dismissal application. The period is defined as being 14 days after the dismissal took effect and the 14-day period is exclusive of the day of the event, in this case, the dismissal. 10

[40] On the basis of the applicant’s primary contentions, this application was filed some 19 days after the dismissal took effect and accordingly an extension of time is required if the substantive unfair dismissal application is to be heard.

[41] Section 394(3) of the Act provides Fair Work Australia with a discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.

[42] However, it is necessary to firstly consider the timing of the events that may be considered to be a dismissal and to examine the conduct of the applicant and the statutory considerations in that context.

[43] In light of my findings in this matter, if there was a dismissal by the employer, it may have occurred in January 2011, when the applicant concluded her work pending the hip operation. The applicant’s case at its highest is that she did not seek to conclude her employment and only did so at the suggestion of the respondent in order to access her LSL and potential social welfare entitlements. If this was considered to be a dismissal for present purposes, the applicant would require an extension of time of some three and a half months. I will call this the January dismissal scenario.

[44] It is also likely that if the January dismissal scenario is valid, the applicant first became aware of that in mid February 2011 when she spoke to Centrelink and was advised that her employer no longer considered her to be employed.

[45] The applicant also approached Manpower in March 2011 and was advised that there was still no work available at that time and that if any arose, she would be approached. I will call this the March dismissal scenario. If this event triggered a dismissal, an extension of time in the order of two months is required.

[46] Finally the applicant claims to have been dismissed on 29 April 2011 when she supplied the medical clearance and spoke to a manager at the client property - the April dismissal scenario. In this context, the applicant is only five days out of time.

[47] I will deal with the question as to whether any of these events could provide the foundation for an unfair dismissal application as part of the consideration of the merits of the unfair dismissal matter.

[48] Although the statutory discretion in s.394(2) requires the considerations in s.394(3) relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters I have been mindful of the approach to the concept of exceptional circumstances as summarised by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 11

The reason for the delay

[49] I have earlier outlined my reservations with the evidence of the applicant concerning the facts ultimately leading to the lodgement of the application and as a result there are significant gaps in the explanation of the delay.

[50] I have also earlier set out the various scenarios that might establish when a relevant dismissal may have taken place. In general terms, there is not a satisfactory explanation for the delays associated with the filing of this application in relation to any of these scenarios.

[51] As I will canvass further in due course, I also do not consider that the applicant has a strong case that she was dismissed by the employer at any time.

[52] The difficulty with using the applicant’s primary contention, the April dismissal scenario is that there is no relevant event that could trigger such to be considered to be a dismissal. That is, the applicant’s status as a person who was not then considered by Manpower to be employed was the same as in mid February when she was advised of that fact. The fact that work may be available to her in the future without any guarantees was also known to Ms Bateman from mid March 2011. It should have been clear to her based upon what she was advised by Ms Thomas and Mr Lawler that a medical clearance was not the relevant consideration for the employer and that if she had been dismissed, this took place much earlier.

[53] I do accept that Ms Bateman may not have understood the effect of seeking the separation certificate and the payout of her LSL. This was in my view the most likely event to have created a dismissal. However, by mid February 2011, she was aware that Manpower no longer considered her to be employed.

[54] This was confirmed in mid March 2011 and again in mid to late April 2011. In that period, there are factors that provide some explanation for the early parts of the overall delay. The applicant may not have understood the effect of her alleged dismissal until mid February 2011. Ms Bateman was recovering from a hip operation in late January and for most of February 2011. This provides a satisfactory explanation for these elements.

[55] However, after mid February 2011, the applicant approached a lawyer and took advice on related matters. She did not seek or act on any such advice in relation to her unfair dismissal claim and indeed did nothing in relation to her concerns until at least late April 2011.

[56] Although the applicant claims to have been unaware of any unfair dismissal rights and the associated time limit, this does not sit well with some of her other actions and is not of itself the basis for a finding of exceptional circumstances. As was said in Cheyne Leanne Nulty v Blue Star Group Pty Ltd at par 14:

“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[57] Although not argued in this form by Ms Bateman, I have considered whether the absence of a medical clearance prior to 29 April 2011 itself provides an explanation for the delay. I have also considered whether the approach to the client property manager at that time assists the applicant’s case. However, given by mid February 2011 Ms Bateman had already formed the view that she may have been dismissed and that such was unfair, and by mid March 2011 had approached a lawyer to seek assistance in relation to her circumstances, these factors do not satisfactorily explain the delay in taking action to contest her alleged dismissal.

[58] Even taking the April dismissal scenario at face value, in the context of the events leading to that point, there is not a satisfactory explanation for the delay in filing the application when it was.

[59] In summary, there is not a satisfactory explanation for the delay in lodging the application in terms of any of the potential dismissal scenarios that I have outlined.

When the person first became aware of the dismissal after it had taken effect

[60] Based upon the January dismissal scenario, the applicant first became aware that her alleged dismissal took place in mid February 2011. This is a relevant consideration in relation to this matter.

[61] The fact that this was confirmed in March and April are also relevant in the broad consideration of the matter.

[62] For reasons outlined above, I do not consider that the applicant first became aware of her alleged dismissal in late April 2011.

Any action taken by the person to dispute the dismissal

[63] This consideration is clearly related in this case to the reasons for the delay as discussed above.

[64] It is evident that Ms Bateman did not take reasonable steps to inquire into her potential rights or to promptly act on any advice that she may have been given.

[65] The approach to Fair Work Australia in mid May 2011 does not show a desire to expeditiously pursue the matter.

Prejudice to the employer (including prejudice caused by the delay)

[66] The respondent has not indicated any specific prejudice arising from the delay. The absence of demonstrable prejudice is a relevant consideration 12 however the absence of such prejudice is also not in itself a reason to grant an extension.13

The merits of the (unfair dismissal) application

[67] The consideration of the merit of the application in this context is limited to the prima facie merits. 14

[68] The respondent contends that the applicant was not dismissed. Dismissal in this context means a dismissal contemplated by s.386 of the Act which provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) ...(not relevant)

(3) ...(not relevant)”

[69] As alluded to earlier in this decision, the applicant’s case taken at its highest is that she did not intend to end the employment relationship by seeking the employment separation certificate and the full payout of her LSL. It is at least conceivable that she was forced to take that course of action as a result of the conduct of the employer however the evidence presently before Fair Work Australia would not support that proposition. At best, the circumstances at that point may represent a mutual termination, but not a dismissal at the initiative of the employer. The applicant also does not have a strong case that the other events touching upon this application would fall within the other parameters of s.386 of the Act.

[70] I would add that this does not mean that the overall circumstances were entirely fair to Ms Bateman, however Fair Work Australia would only have jurisdiction to deal with the unfair dismissal matter where a relevant dismissal is found to exist.

[71] I do note that there are certain obligations to provide ongoing work under the relevant WorkCover legislation 15 and the applicant may well have a case that the hip operation and related incapacity were work related. However, these are not matters for this application or for Fair Work Australia. I also note that if the respondent has refused to offer further work to the applicant on the basis of her medical condition or the WorkCover claim, which it has strongly denied in these proceedings, the applicant may have the basis for a General Protections claim.16

[72] Accordingly, it is sufficient for present purposes to note that there is a significant jurisdictional hurdle that the applicant would need to succeed upon in order for the unfair dismissal application to further considered. The applicant does not have a strong case in that regard. The applicant may however have an alternative cause of action open to her to pursue the issue that lies at the heart of her application; namely the absence of ongoing work said to be in the context of her WorkCover claim.

Fairness as between the person and other persons in a similar position

[73] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, the consistent application of principles adopted by Fair Work Australia in similar matters is in line with this consideration and I have sought to adopt that approach in this matter.

CONCLUSIONS

[74] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am not persuaded by the applicant that there are exceptional circumstances as contemplated by s.394(3) of the Act and I decline to extend time.

[75] As a result, there is no jurisdiction for Fair Work Australia to deal with the application and it must be dismissed. An order to that effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Bateman on her own behalf.

J Hunt with B Lawler for Manpower Services (Australia) Pty Ltd.

Hearing details:

2011

Adelaide

August 3

 1   S.397 of the Act permits a matter to be determined without conducting a conference or holding a hearing where there is an absence of factual disputes.

 2   Exhibits A1 and A2.

 3   In the immediate lead up to the hearing of this matter, my office provided written details of the relevant provisions of the Act to each of the parties and at the outset I also comprehensively advised them as to the general nature of the extension of time hearing and the considerations arising in the case.

 4   Para 11 Exhibit R1

 5   The applicant’s evidence was that a form containing details of her LSL and other payments was provided by the employer but denied that this was an employment separation certificate. The alternative document explained by the applicant (a timesheet that was not used by the employer in relation to the applicant) was not in my view credible or likely. Mr Lawler’s explanation on this count was clear and credible.

 6   Set out in solicitor’s letter provided by the applicant - Exhibit A6.

 7   Transcript PN90 and PN121.

 8   Transcript PN296. The applicant was advised of her rights with respect to privilege and effectively waived those rights.

 9   Transcript PN141.

 10   S.36 of The Acts Interpretation Act 1901.

 11   [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C. Although decided in the context of a general protections application, the general approach outlined at pars [12] to [15] is applicable to the present considerations.

 12   Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.

 13   Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

 14   Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.

 15   Workers Rehabilitation and Compensation Act 1986 (SA) s.58B provides certain obligations for an employer to provide suitable employment to a worker who has been incapacitated for work in consequence of a compensable disability and is subsequently able to return to work. There are certain caveats on that provision and I make no comment as to whether these apply in the case of Ms Bateman.

 16   The General Protections provisions of the Act (Chapter 3 of Division 2) extend to circumstances where adverse action is taken against a prospective employee on certain grounds. I make no findings or inferences that this has occurred.

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