Ms Natalya Romanowska v Corangamite Shire Council

[2020] FWC 3609

[2020] FWC 3609

FAIR WORK COMMISSION

DECISION

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

Ms Natalya Romanowska
v
Corangamite Shire Council
(C2020/3928)

DEPUTY PRESIDENT CROSS SYDNEY, 9 JULY 2020

Application to deal with contraventions involving dismissal.

[1] On 25 May 2020, Ms Natalya Romanowska (the “Applicant”) lodged an application (the “Application”) pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by Corangamite Shire Council (the “Respondent”). The Applicant commenced her employment with the Respondent on 18 November 2018. Her dismissal took effect on 16 March 2020, and she was notified of his dismissal on that date. In her period of employment she took 11 months unpaid maternity leave.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the “Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 6 April 2020. The application was therefore lodged outside of the time prescribed and was lodged 43 days after the last day on which such an application could have been made.

[3] On 17 June 2020, Directions were issued from my Chambers to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his Application would be determined (the “Directions”). The Directions were issued provided for a timetable for the filing of Outlines of Submissions from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely.

[4] At first instance, the Applicant relied upon her answer at Question 1.4 of the Application. In accordance with the Directions:

(a) On 1 July 2020, the Respondent filed an Outline of Submissions responding to the Applicant’s reasons; and

(b) On 7 July 2020, the Applicant filed an Outline of Submissions in Reply, a witness statement of Mr David Walmsley, and a number of Annexures.

Applicant’s Prior Unfair Dismissal Application

[5] Consideration of the Application necessarily involves an understanding of an Unfair Dismissal Application filed by the Applicant against the Respondent (“the UD Application”)

[6] On 6 April 2020, being the 21^st day after the dismissal, the Applicant’s former representative, the Australian Services Union (the “ASU”), filed the UD Application. As noted above, the Applicant commenced her employment on 18 November 2019, and her dismissal took effect on 16 March 2020. Quite clearly, the Applicant did not meet the required minimum employment period to be allowed to progress the UD Application.

[7] Just how such a basic jurisdictional error occurred was explained by Mr Walmsley in his statement. The totality of that statement as follows:

“Witness statement – Dave Walmsley, ASU – A brief summary of events between the week ending Friday the 13th of March and the week ending Friday 8th of May

Tali Romanowska called me in the week ending Friday the 13th of March and told me she had been stood down from Corangamite Shire with full pay on allegations which were blatantly false and in retaliation to complaints she had made. I told her I was on leave the next week and we would discuss the case early the following week, beginning Monday the 23rd of March. On Monday the 23rd of March we arranged via phone for me to meet her at her house the following day to discuss the case. In this phone call Tali told me she had since been summarily dismissed effective immediately on different allegations. Tali sent me approximately 25 emails of evidence relating to her case as I requested. I forwarded these emails onto my legal representatives at ASU.

On Tuesday the 24th of March 2020 I visited Tali Romanowska at her home to discuss her dismissal case. We discussed the case for approximately an hour in total, including discussing that the case was very strong, and flagged the potential issue that Tali was 2-3 weeks under the 6-month minimum employment period. I told Tali that due to the nature of the dismissal this shouldn’t be an issue, but I would have to check with my legal representatives to confirm. I called her the following day as requested by my legal representatives and requested she send me her start date, which she did via text. I sent this on to the legal representatives at ASU.

Tali and I continued to exchange calls when she wanted an update on how the case was going or when I needed to ask for further information on the case for the legal representatives. The legal representatives spent most of their time checking the potential issue flagged of the minimum employment period. They finally informed me that the 6 months would not be an issue and they were preparing the case. I passed this information onto Tali.

The application was finalised and submitted on the 6th of April 2020. Confirmation was received on 8th of April 2020 by the FWC, and conciliation was booked in for the 14th of May 2020. I told Tali that it was now a matter of waiting, and we agreed to discuss the conciliation in more detail prior to the date.

On the 23rd of April 2020 the legal representatives of Corangamite Shire provided response to the application, including the jurisdictional objection on the grounds of the minimum employment period. On the 5th of May 2020 Corangamite Shire’s legal representatives sent further correspondence on the jurisdictional objection of the minimum employment period. The legal representatives at ASU informed me that they might have to withdraw the claim and were working on checking the jurisdictional objection. I called Tali and updated her. Tali told me she was sure that due to the nature of the dismissal the minimum employment period wasn’t an issue. Tali agreed to look it up and send information to me so I could get the legal representatives to check it out, and in the meanwhile that the legal representatives were working on checking out the jurisdictional issue.

Tali sent me a link to the FWC website titled General protections dismissal. I sent this onto my legal representatives to check out and updated Tali that they were working on it. On Friday the 8th of May I got our response from the legal representatives at ASU that Tali was not eligible for general protections dismissal [corrected in proceedings to unfair dismissal] due to the minimum employment period. I forwarded this to Tali. Tali told me that there wasn’t a minimum employment period for general protections dismissals. I had a discussion with Tali via phone and we discussed various ways to check on this and other potential options for Tali’s dismissal case, including a referral to Maurice Blackburn and checking with the FWC. That afternoon Tali forwarded me an email from the FWC regarding general protections dismissals, and we agreed to discuss the matter further on the following Monday.” (Emphasis added)

[8] With respect, it is difficult to understand how the Applicant could have been given some of the advise outlined in Mr Walmsley’s statement. It was advice about basic jurisdictional prerequisites, and it was wrong. However, what that evidence discloses is that:

(a) The issue of the minimum employment period was a live consideration of both the Applicant and the ASU from 24 March 2020, well before the filing of the UD Application;

(b) The Applicant and Mr Walmsley relied upon the legal representatives, who apparently “spent most of their time checking the potential issue flagged of the minimum employment period”, before advising that it would not be an issue;

(c) On 23rd of April, and 5 May, 2020, the legal representatives of the Respondent clearly outlined to the Applicant and the ASU the jurisdictional objection on the grounds of the minimum employment period; and

(d) On 8 May 2020, further advice was received from the legal representatives at ASU regarding ineligibility for unfair dismissal due to the minimum employment period.

[9] What was remarkably absent from Mr Walmsley’s statement was any explanation of what occurred between 8 May 2020, and 25 May 2020, being the date the Application was filed. I note that in her answer at Question 1.4 of the Application, the Applicant outlined that the ASU “have chosen not to represent me in this claim, which I found out on the afternoon of 21 May”.

Consideration

[10] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“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).”

[11] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[12] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[13] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[14] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd stated 1:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[15] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[16] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[17] The position of the Applicant that was outlined in her answer at Question 1.4 of the Application was as follows:

“My reason for request for extension of time is that I was entitled to rely on my representation, as this is the claim which should have initially been submitted, and not the unfair dismissals claim. The unfair dismissal claim did go in within the 21 day time limit – the claim number was U2020-4258.

Another major reason for the time delay is that Corangamite Shire did not make this jurisdictional objection until the 4th of May. Conciliation had been scheduled for the 14th of May since the confirmation received by the FWC of the original unfair dismissals application on the 8th of April.”

[18] The Respondent, in their Submission filed before the receipt of Mr Walmsley’s statement, submitted as follows:

“12. This is not a case where the ASU was negligent in not filing an application within the prescribed time. In this case, the ASU did file the application within the prescribed 21-day period, however, the application failed for want of jurisdiction. There is no evidence before the Commission to indicate or suggest that the ASU did not follow the Applicant's instructions in filing the unfair dismissal claim.

13. Furthermore, it appears that the Applicant may have specifically raised with the ASU the issue of the 6-month minimum employment period, prior to the unfair dismissal claim being lodged. Accordingly, this indicates that she was "alive" to this issue being potentially problematic for her unfair dismissal claim.

14. The Applicant claims that she relied on the advice given to her by the ASU that it would not be an issue if the Council did not make an objection on those grounds. No explanation is given as to why she would have blindly followed such advice given to her (if indeed that occurred). A cursory search on the FWC website would have adequately and clearly explained why she would not have been eligible to bring an unfair dismissal claim, given that she was still serving her minimum employment period. One assumes that she would have looked at this website in drawing this issue to the ASU's attention in the first place.”

[19] This matter involves a somewhat extraordinary state of affairs where the Applicant was aware of the 21 day limitation period, and the minimum employment period for unfair dismissals, and explained that knowledge to her experienced representatives, only to have “the legal representatives at ASU” give her flawed advice upon which she thereafter relied. I am not prepared to find that the Applicant has no acceptable explanation for all of the 43 day period of delay. That is because it is understandable that the Applicant relied on the advice of legal representatives.

[20] I do not accept, however, that the Applicant has an acceptable explanation for all of the 43 day period of delay. In the Applicant’s Outline of Submissions in Reply, the Applicant notes:

“You can see in the text message exchanges that I returned Dave Walmsley’s call shortly after 10:25am on Tuesday the 5th of May, in which he told me the Unfair Dismissal claim might have to be withdrawn due to the 6 month minimum employment period. At 12:48pm on the 5th of May, I send him the link for general protections dismissals. That’s approximately 2 hours after receiving the first legal advice that I wasn’t eligible for Unfair Dismissals.”

[21] On both 23 April, and 5 May 2020, the legal representatives of the Respondent clearly outlined to the Applicant and the ASU the jurisdictional objection on the grounds of the minimum employment period. Notwithstanding the Applicant’s previous reliance of the advice of the ASU’s legal representatives, both those pieces of correspondence should have alerted the Applicant to the fatal error in the UD Application.

[22] Further, on 8 May 2020, further advice was received from the legal representatives at ASU regarding ineligibility for unfair dismissal due to the minimum employment period.

[23] Even taking 8 May 2020, as the point of reference, being the most generous consideration for the Applicant, there is no acceptable reason for the Applicant’s delay thereafter in commencing the Application. It took seventeen further days for the Applicant to commence the Application. I consider, however, that the Applicant should have taken steps to commence the Application shortly after 23 April 2020, when the jurisdictional objection on the grounds of the minimum employment period was raised by the legal representatives of the Respondent.

[24] While I accept that the Applicant has an acceptable explanation for a part of the 43 day period of delay, I find there is no acceptable explanation for the delay in application after 23 April 2020, or in the alternative 8 May 2020. Accordingly, this factor weighs in the Respondent’s favour.

(b) Action taken by the person to dispute the dismissal

[25] The Respondent submitted the following regarding prejudice:

“Although the Applicant did contest her dismissal at an early stage, this was by way of an unfair dismissal claim on the basis that her termination was "harsh, unjust and unreasonable". She did not contest her termination based on any breaches by the Respondent of the general protections provisions of the FW Act. It was only when it became obvious to her that she could no longer proceed with her unfair dismissal claim, did she activate the general protections claim and, even then, there are unexplained delays for her doing so.”

[26] It is abundantly clear that the Applicant did take action to dispute her dismissal by the UD Application. Accordingly, this factor weighs in the Applicant’s favour.

(c) Prejudice to the employer

[27] Regarding prejudice,the Respondent submitted:

“The Applicant has made a number of wide-ranging allegations in this matter and has filed an excessive amount of documentation, much of which is irrelevant to the issues at hand. Nevertheless, the Respondent will have to spend a great deal of time, utilise a number of resources and incur substantial unrecoverable expenses in defending this claim. The Respondent would have been entitled to believe that its successful opposition to the Applicant's unfair dismissal claim would have brought any further actions by her under the FW Act to an end.”

[28] The range of the allegations in the matter is irrelevant, however it is undoubted that the Respondent will incur costs and expenses in defending the claim. This factor accordingly weighs slightly in the Respondent’s favour.

(d) Merits of application

[29] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.

[30] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[31] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness between the person and other persons in a similar position

[32] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[33] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight for the Respondent were acceptable reason for delay and prejudice to the Respondent. The only factor weighing in the Applicant’s favour was action taken to dispute the dismissal.

[34] I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

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 1   [2014] FWC 479 at [30].